top of page
  • Brian Walsh

On Labor and Employment, Barrett Follows the Facts and the Law

Judge Amy Coney Barrett has written opinions on a wide variety of labor issues in her short time on the Seventh Circuit Court of Appeals. Judge Barrett has demonstrated herself to be impartial, rendering rulings in favor of both employers and employees and basing her decisions on a strict factual examination in each case. Like her mentor Justice Scalia, Judge Barrett follows where the law takes her, not where she may wish it would go.

Judge Barrett has ruled on multiple discrimination cases, and contrary to Democrats’ stereotypes, she has held for David, not Goliath, on multiple occasions. In Equal Employment Opportunity Comm'n v. Costco Wholesale Corp., a female employee of Costco was stalked by a male customer and traumatized by it.[1] After Costco terminated her employment, the EEOC sued Costco for tolerating the harassment for a year.[2] After a jury verdict for the EEOC and female employee, Costco moved for judgment as a matter of law, and the EEOC moved for backpay.[3] Judge Barrett affirmed the female employee's victory by concluding a reasonable jury could conclude the male customer's conduct severe enough to support the hostile work environment.[4] This conduct included followed her around the store, watching her from around corners, staring at her in disguises, and monitoring her movements.[5] She remanded the case to the district court to consider whether the employee was entitled to back pay for the period of time following her involuntary leave.[6]

Another example of Judge Barret’s empathy for the proverbial underdog was in Smith v. Rosebud Farm, Inc.[7] The male plaintiff worked as a butcher, and after experiencing several years of ongoing sexual and racial harassment from his male coworkers and supervisor, he sued under various civil rights statutes.[8] Judge Barrett held that Title VII is an anti-discrimination statute, not an anti-harassment stature.[9] She explained, if the employee had worked in an all-male environment, the fact that only men were touched and groped would not raise an inference of sex discrimination.[10] Nevertheless, he did not, and his female coworkers did not experience the same harassment.[11] Thus, Judge Barrett reasoned this left the jury free to reasonably conclude that he was subject to discrimination on the basis of sex.[12]

Similarly, in Vega v. Chicago Park Dist., Judge Barrett upheld a jury verdict in favor of a Hispanic park district employee on her Title VII claim for national origin discrimination.[13] Judge Barrett scrutinized the standards for causation under Title VII and Section 1983, explaining that while a plaintiff “has ‘plenty of room” to convince the jury that a causal link exists” under Title VII,[14] The standard for proving a "widespread custom" of discrimination under Section 1983 is more challenging to meet.[15] Consequently, Barrett affirmed the jury's verdict in favor of the employee on her Title VII claim and the trial court's dismissal of the Section 1983 claim because the employee had not met her burden.[16]

In contrast, Judge Barrett has ruled for employers as well. In Purtue v. Wisconsin Dep't of Corr., a terminated corrections officer alleged gender discrimination after her dismissal for falsely claiming a prisoner hit her with an empty snack cake box he threw.[17] However, the corrections officer did not present evidence that she was terminated for anything other than her admitted violation of Department rules.[18] Further, in Graham v. Arctic Zone Iceplex, LLC, Judge Barrett upheld a summary judgment decision for an employer sued by an employee alleging disability discrimination.[19] In addition to the plaintiff failing to establish an issue of material fact,[20] He crashed a Zamboni creating a hazard for the employer's customers.[21]

During the second day of the confirmation hearings on Tuesday, one case that Senator Booker probed Judge Barrett on was Smith v. Illinois Dep't of Transportation.[22] Smith sued the Department under Title VII, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination.[23] The Department stated that the plaintiff was disciplined and eventually terminated for poor work performance, including numerous safety violations during his probationary period.[24] Before beginning her analysis, Judge Barrett emphasized that the use of the n-word is an egregious racial epithet.[25] However, Smith failed to meet the elements under Title VII for a hostile work environment.[26] She explained, “Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment. And he must make this showing “from both a subjective and an objective point of view.”[27] It should also be noted that the Supervisor who made the alleged epithet was also an African American[28] This may have influenced the unanimous Court's view of the impact of this comment on Smith.

In conclusion, Judge Barrett’s explanation of how she writes opinions from one of her children's perspective as the party she is ruling against is clearly shown when she adjudicates discrimination cases. She does not choose sides but analyzes the facts and follows where the law directs her. She will be an impartial justice that provides equal justice for all.


[1] 903 F.3d 618, 621 (7th Cir. 2018)

[2] Id.

[3] Id.

[4] Id. at 626-27.

[5] Id. at 626.

[6] Id. at 629 (the district court did not initially address whether the sexual harassment suffered forced the unpaid medical leave so remand was necessary).

[7] 898 F.3d 747, 749 (7th Cir. 2018)

[8] Id. (plaintiff claimed violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Illinois Gender Violence Act).

[9] Id. at 752.

[10] Id.

[11] Id.

[12] Id.

[13] 954 F.3d 996, 1004 (7th Cir. 2020).

[14] Id. at 1007.

[15] Id. at 1011-12.

[16] Id. at 1012.

[17] 963 F.3d 598, 599-600 (7th Cir. 2020).

[18] Id. at 603.

[19] 930 F.3d 926, 928 (7th Cir. 2019).

[20] Id. at 930.

[21] Id.

[22] 936 F.3d 554 (7th Cir. 2019)

[23] Id. at 558.

[24] Id. at 560.

[25] Id. at 561.

[26] Id.

[27] Id.

[28] Id. at 558.


bottom of page