When I came out of law school, I did not know that I was going to be a labor and employment lawyer. I wanted to work in Major League Baseball. I didn’t have necessary pedigree, though, so I moved on to Plan B fairly quickly.
It turns out that Plan B was a pretty decent plan. I took a job at a good law firm, learned my craft from some really good lawyers, and then soon found my niche in labor and employment law. Over 27 years of practicing law, I am grateful for all the opportunities the practice has given me.
Because my practice is focused on labor and employment law, whenever an opening occurs at the Supreme Court, I tend not to get caught up in the typical debates over abortion rights, the Second Amendment, or the politics of the appointment process.
Instead, I am interested in trying to understand how the potential Justice views labor and employment issues. Over the last week or so, President Trump’s nominee Amy Coney Barrett’s views on employment issues have come in to clearer focus.
Last May, Judge Barrett was in the majority on a decision which found that “attendance” is an essential function of a job. The case involved a municipal employee in Chicago who was absent fifty times in a year and who claimed that her absenteeism was a “reasonable accommodation” for her disability. She was fired for excessive absenteeism notwithstanding her disability. The court said that she could not perform the essential functions of her job if she did not show up for work and dismissed her case.
However, this view of the world may have changed considerably since COVID hit. We now know that attendance in many instances is not an “essential function” of many jobs. This area of the law is going to evolve in the next few years. While Judge Barrett has disfavored claims of disability discrimination generally, it is not clear how she would decide a case after the world of work changed as a result of COVID.
Given her strong Catholic faith, Judge Barrett would likely broadly grant ministerial exceptions to discriminatory conduct engaged in by religious organizations. I have written about the ministerial exception before. Generally, the exception allows religious organizations to make employment decisions that might otherwise be discriminatory, in furtherance of their religious objectives. The typical case is one where a religious employer fires a teacher who announces that he is gay.
In a case involving an employee at Costco who was stalked by a customer on a regular if not daily basis, Judge Barrett found that the harassment was severe and pervasive because it was “constant” and necessitated the employee taking a leave from her job for over fourteen months. The customer followed the employee, watched her from around corners, disguised himself and hid behind racks while he followed her, and asked her to account for conversations she had with men. Judge Barrett ruled in favor of the employee that Costco had submitted her to a hostile work environment by not taking sufficient action to stop the harasser. However, Costco was not liable for discrimination when it fired the plaintiff when she refused to return to work. So it was a partial win for the plaintiff.
I suspect that a Justice Barrett will take a dim view of most claims of discriminatory conduct given that conservative judges often do. But based on her writing and her thoughtfulness, she is likely to hold bad employers accountable when a plaintiff puts forth sufficient evidence to support his claims.