Trump’s pick for the Supreme Court shows weakness on Workers’ issues

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Amy Coney Barrett

By Patrick Forrest

President Donald Trump announced his latest selection to the Supreme Court of the United States, federal Judge Amy Coney Barrett, to fill the seat of the late Justice Ruth Bader Ginsburg. Barrett has a local history, spending three years on the Chicago-based 7th Circuit Court of Appeals.

While many media reports have centered on Coney Barrett’s opinion on the issue of abortion and the precedence of the Roe v Wade decision, instead after an investigation into the judge’s past the potential justice’s view on workers’ rights could also be important.

During her time on the federal court Judge Barrett wrote the opinion in the case of Terry L. Smith vs. the Illinois Department of Transportation, after a district court ruled against Smith, an emergency traffic patrol worker, who said he had dealt with a hostile work environment and was fired after he complained multiple times about being subjected to racial discrimination while on the job.

According to the Department, Smith was far from a model employee. Early in his training, one of his supervisors reported that he challenged the instructions that he was given, which created a “serious issue” for his training and development. Another supervisor said that Smith regularly “fail[ed] to remember info” and “ha[d] a very hard time following basic instructions.”

Smith however filed suit claiming that the use of the N-word by a direct supervisor created a hostile work environment and filed the case to protest against his firing.

Barrett’s ruling however did not stand on his employment history instead on the Title 8 protections of the Civil Rights Act that prohibits workplace discrimination based on factors like race or religion.

“That won’t do under Title VII,” Barrett wrote. “Without evidence that Colbert’s outburst changed Smith’s subjective experience during his last two weeks at the department, a reasonable jury could not resolve the hostile work environment claim in Smith’s favor. In other words, he must show not only that a reasonable person would find the workplace hostile or abusive as a result of Colbert’s slur, but also that he himself perceived it that way.”

The ruling directly contradicts a ruling made by the Justice that Barrett is being nominated to replace, Ruth Bader Ginsburg. Ginsburg signed on to the unanimous opinion that the ‘reasonable person’ statute comes from in 1993, having made that ruling to overturn a similar stance to Barrett on sexual harassment after a lower court ruled that the harassment had taken place but had not created a hostile work environment.

The case is the second in two weeks that the Crusader has found showing Barrett’s views on Title VII of the Civil Rights Act in workers’ right protections, following the report on her decision in the AutoZone v EEOC case.

In that suit, AutoZone managers were accused of deciding in 2012 to eliminate or limit the number of non-Hispanic employees working at the store, located at Kedzie and West 49th Street. The EEOC’s pre-suit administrative investigation, supervised by EEOC District Director John Rowe, revealed that the employer appeared to believe Hispanic customers of the store would prefer to be served by Hispanic employees. As a result, the Black sales manager was allegedly told to report to another store on the far south side of Chicago. When he refused to do so, he was fired, the EEOC said.

With that history on the 7th Circuit Court of Appeals a total of 22 attorneys general, including Indiana’s Curtis Hill, signed a letter urging the senate to confirm Judge Barrett immediately.

“Judge Barrett is a distinguished legal scholar and an exceptional appellate judge with a track record of interpreting the Constitution according to its text and original public meaning,” states the letter, signed by 22 state attorneys general. “As we are sure your review of her exemplary record will reveal, she has the qualifications, experience, and judicial philosophy to be an outstanding Associate Justice.”

Hill, for his part, leaned very heavily on Barrett’s history in the state both on the 7th Circuit Court and with her having graduated from Notre Dame Law School.

“As Hoosiers, we have watched Judge Barrett’s excellent work and become proud of her well-deserved national prominence,” Attorney General Hill said. “She possesses an unparalleled legal acumen and a well-grounded measure of common sense — a valuable combination that will serve her well when she joins the nation’s highest court.”

Also signing the letter was Kentucky Attorney General Daniel Cameron who has recently come under fire for his handling of the Breonna Taylor case.

While it was believed that Judge Barrett would be able to ride a partisan vote in the Senate to her confirmation to the Supreme Court, a recent turn of events has called that into question. An outbreak of COVID-19 throughout the leadership of both the White House and the Republican Party has made that much less certain.

Senate Republicans held a 53-47 advantage and following the death of Justice Ruth Bader Ginsburg, with Senators Lisa Murkowski and Susan Collins stating that they would not vote to confirm any Justice nominated before the election, and two more Republican senators testing positive for COVID-19, the advantage is gone with only 49 senators expressing support for Trump’s selection.

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