How will Justice Amy Coney Barrett rule on workplace Issues?

November 14, 2020

As a Supreme Court justice, Amy Coney Barrett will be called upon to decide cases in a variety of criminal and civil cases, including those impacting the workplace.

During her tenure on the 7th U.S. Circuit Court of Appeals, Barrett wrote about 15 employment cases and was part of the panel on about 45 more.

Reviewing how Barrett decided these cases, her decisions show a mixed bag of favoring employees and employers.

She seems to do what judges are expected to do – apply the facts to the law.

One case in particular illustrates her analysis of federal law and how she applied the facts to the strict language of the laws written by Congress.

She led a three-judge panel in ruling in favor of a butcher at the Rosebud Farm grocery store. The male butcher had lodged claims under Title VII and other statutes that he had been the target of illegal racial and sexual harassment by his male colleagues and supervisor.

The male butcher claimed the harassment began almost immediately upon hire and included his male peers and supervisors grabbing his genitals and buttocks. His supervisor not only knew about the harassment but participated on one or two occasions.

They also targeted him due to his race, using racial epithets.

Before the trial began, the employer asked that judgment be granted as a matter of law, claiming that the conduct by its employees was “sexual horseplay” and not sex discrimination, thus not actionable under Title VII of the Civil Rights Act, which protects employees from discrimination based on sex, race, color, religion and national origin.

Sexual harassment is a form of sex discrimination; the employer admitted to the conduct but contended that the conduct was not due to sex.

The employer’s motion for summary judgment was dismissed and the case went to trial, where the employee prevailed.

The employer appealed to the 7th U.S. Circuit Court of Appeals. On appeal, the employer contended “the meat counter culture was one of sexual rough-housing, not sex discrimination.”

Barrett disagreed, writing for the majority. The appeals court held, “The evidence supports the inference that [butcher Robert] Smith’s coworkers harassed him because he was male. The shop was a mixed-sex workplace, and only men were groped and taunted. Because men were treated differently from women at Rosebud, a reasonable jury could conclude that Smith was tormented because of his sex.”

She compared the pending matter against two other similar rulings by the appeals court where the employer prevailed.

But in this case, she said that the employee “offered direct comparative evidence that only men, and not women, experienced the kind of treatment that he did at Rosebud.”

She added that there was “ample testimony” that “only men were groped, taunted, and otherwise tormented. Witnesses recounted the numerous times they saw men grabbing the genitals and buttocks of other men. No witness recalled seeing female Rosebud employees subjected to the same treatment. Because Smith introduced evidence that his coworkers only harassed male employees, the jury was free to conclude that these men discriminated against him on the basis of sex.”

This case illustrates how Barrett will read and apply the law.

The case was carefully analyzed with an outcome that was appropriate based on a strict reading and interpretation of the facts and law.

Of course, this case also illustrates how poorly managed some companies are and how unacceptable it is to have these behaviors in the workplace.

If employers are waiting to see how Barrett will rule on employment cases before they get their workplaces in order, they are missing a key opportunity to address workplace culture.

Few cases reach the Supreme Court, but workers go to work every day deserving a workplace free from harassment and discrimination – including horseplay or “rough-housing.”

Employers are once again be reminded to get their houses in order, set expectations for workplace behavior, and then investigate and eradicate any misconduct after being on notice.