Trump’s pick protects corporations that discriminate against workers.

Amy Coney Barrett’s record raises serious questions about how she would approach workers’ rights and civil rights issues on the bench. She has a troubling track record of siding with companies that engage in discrimination, ruling for corporations over people 76% of the time.

In her very first decision after joining the Seventh Circuit, Barrett upheld a ruling that allowed a company to “intentionally assign members of different races to [work at] different stores.” 

  • An African American Autozone sales manager had been transferred to work at a new location by his employerallegedly because Autozone wanted to make his prior location a “predominantly Hispanic” store. The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit on his behalf, but a panel of the Seventh Circuit upheld the employer’s ability to transfer employees based on their race as long as the transfer did not otherwise “adversely affect[] [their] employment opportunities or status.” The EEOC asked the whole Seventh Circuit to rehear the case, but a majority of the Seventh Circuit – including Barrett – refused to do so.
  • Chief Judge Wood and two other judges dissented from the refusal to rehear the case, noting: “Under the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII so long as the ‘separate’ facilities really are ‘equal’…. That conclusion, in my view, is contrary to the position that the Supreme Court has taken in analogous equal protection cases as far back as Brown v. Board of Education…”

Barrett ruled that a company had not engaged in illegal age discrimination by having a maximum number of years of experience for a job posting, even though the requirement severely disadvantaged older workers. 

  • An applicant for a senior position in CareFusion’s legal department claimed that a job description requiring “no more than 7 years” of experience had the effect of discriminating against older workers in violation of the Age Discrimination in Employment Act (ADEA).
  • A panel of the Seventh Circuit would have allowed the case to move forward, but Barrett joined the majority of the court, sitting en banc, to hold that, in order to satisfy the ADEA, a job applicant must show that a job requirement intentionally discriminates on the basis of age. It is not enough to show that the requirement has the effect – even the overwhelming effect – of discriminating against older applicants.

Barrett dismissed a case brought by two employees against an employer who they claimed improperly fired them. The employees attempted to utilize the employers’ arbitration process, but eventually sued in court because the process had been stalled for years. Barrett’s dismissal kicked the employees out of federal court. 

  • Two terminated employees of Jefferies & Company decided to challenge their termination. Pursuant to their employment contracts, they first filed their claims in the Financial Industry Regulatory Authority’s (FINRA) arbitration forum. Their dispute with Jefferies proceeded in arbitration for the next two-and-a-half years. Eventually, the employees withdrew their claims from the arbitration forum and sued FINRA in state court, alleging that FINRA breached its contract to arbitrate their dispute with Jefferies. FINRA removed the case to federal court.
  • Barrett wrote an opinion dismissing the case for a reason that neither side had argued – Barrett concluded that federal courts had no jurisdiction to hear the case because there was not more than $75,000 at issue unless plaintiffs were allowed to count attorneys’ fees, which she claimed was prohibited by state law. 
  • A Republican-appointed judge dissented in part, noting that “Illinois law does not preclude a plaintiff from ‘recovering losses directly caused by the defendant’s conduct simply because those losses happen to take the form of attorneys’ fees.’” The dissenting judge also criticized the majority for assuming that it knew how Illinois state law would apply to the question of the attorneys’ fees in this case. “Frankly admitting that it cannot say with any certainty how Illinois courts would resolve the plaintiffs’ substantive claims, [the majority]… denies the defendants their rightful federal forum.” 

Barrett authored an opinion holding that a group of delivery drivers who accused Grubhub of failing to pay overtime were required to pursue those claims in binding arbitration, rather than in federal court. 

  • Asserting that the drivers were not a class of workers who typically engage in interstate commerce, Barrett concluded that they were not protected by an exemption for transportation workers under the Federal Arbitration Act.
  • The decision left the delivery drivers’ claims to be decided by private arbitrators, who are handpicked by the company themselves. These types of arbitration agreements are used – and misused – especially by technology companies, to ultimately avoid paying their so-called gig workers fairly.

Barrett authored an opinion dismissing an employment discrimination case and ruling that being called the n-word at work is not adequate proof of a hostile work environment to satisfy Title VII of the Civil Rights Act.

  • After being fired from his job at the Illinois Department of Transportation, Terry Smith sued under Title VII. During his employment, he had filed a number of complaints against his supervisors, including one that described an incident in which a supervisor called him the n-word. 
  • Barrett wrote that the lower court judge had correctly ruled against Smith, since he hadn’t shown that he was subjected to a hostile work environment or that he was fired for complaining about the work environment. She concluded that, despite being called the n-word, he had not proven that he was subjected to harassment that “altered the conditions of his employment and created a hostile or abusive working environment.”