This story was written by Walker Bragman
As Donald Trump works to try to halt racial sensitivity training in America’s workplaces, he has pushed to appoint a Supreme Court justice who has periodcally ruled against workers who claim that they have faced racial discrimination on the job.
Judge Amy Coney Barrett’s Surpeme Court nomination was announced four days after Trump issued an executive order barring federal contractors from any “workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” The order claimed that materials asserting certain groups are “inherently sexist and racist are appearing in workplace diversity trainings across the country.”
During her Senate confirmation hearing, Barrett declined to say whether or not she believes systemic bigotry plagues America, though she did acknowledge “that racism exists in our country.” Barrett noted that her family has adopted two Black children, and said that she and her children cried watching the graphic video of police killing George Floyd in Minnesota in May.
On the bench, however, Barrett has in some cases helped employers shut down lawsuits from people of color who argued that their civil rights had been violated. Those were just some of her rulings in which she consistently sided with corporate interests over workers.
In a case from June 2017, involving the Equal Employment Opportunity Commission (EEOC), which had brought suit against AutoZone after the auto parts company handed down store assignments based on race, Barrett joined a majority in affirming a lower court decision in favor of the company. In that case, a Black sales manager in Chicago alleged he had been transferred to a different store because his boss, who was also Black, wanted to keep his current store to be “predominantly Hispanic,” in line with the clientele, to make up for lagging sales.
The court argued that because the transfer was “lateral,” it did not adversely impact the manager’s financial prospects or responsibilities at the company.
“The evidence is undisputed that the July 2012 transfer was purely lateral, like the others before it, and entailed no reduction in pay, benefits, or job responsibilities,” the decision read. “Nor did it otherwise alter his conditions of employment in a detrimental way.”
Dissenting judges, however, accused the majority of allowing the kind of “separate but equal” arrangement prohibited under the landmark decision in Brown v. Board of Education.
In the 2019 case of Smith v. Illinois Department of Transportation, Barrett dismissed racist language as proof of a hostile work environment. In that case, a Black Illinois transportation worker had alleged that he had been subjected to a hostile work environment after being called the n-word by a supervisor.
“The n-word is an egregious racial epithet,” Barrett wrote. “That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that [his supervisor’s] use of this word altered the conditions of his employment and created a hostile or abusive working environment.”
Barrett asserted that the use of the slur had not changed the worker’s “subjective experience of the workplace” even though he had “testified that his time at the department caused him psychological distress.” That distress, Barrett wrote, “was for reasons that predated his run-in with [the supervisor] and had nothing to do with his race.”
“His tenure at the department was rocky from the outset because of his poor track record,” she explained.
This past July, Barrett joined a panel decision in Harris v. YRC Worldwide, Inc. against four Black truck drivers who alleged that their employer, YRC Worldwide, Inc., had assigned them less-desirable urban routes, while giving their white colleagues the preferable suburban routes, against their collective bargaining agreement’s seniority rules. The drivers alleged that they were more likely to get into accidents that led to disciplinary measures along their urban routes, and one noted that he had been held up at gunpoint during one of his deliveries.
The drivers’ complaint claimed that YRC “assigned suburban routes to white drivers more frequently than it would have done if race had been ignored.”
The court, however, held that the drivers had not met their burden of proof to show either that urban routes were inferior to suburban ones. Of particular note to the court was the fact that the drivers had not explained how the urban assignments affected wages or the probability of promotions. The court further explained that they had not demonstrated that the company had broken seniority protocols more with Black drivers than white drivers.
"Just as appellants did not try to show concretely how urban routes provided them with inferior working conditions, they did not try to analyze the assignments to see how often YRC followed seniority and how often it did not,” the decision read. “Each appellant testified to one or more departures from the seniority rules, but unless YRC departed more often to the detriment of Black workers than to the detriment of white workers, the departures were not discriminatory."
The drivers also claimed that the YRC workplace was a “racially hostile environment.” They alleged that their white colleagues used racial slurs. One alleged that a supervisor had asked him, “What’s the deal with chicken and waffles?”
The court, however, was unconvinced and did not feel that these indignities met the requirements for employment discrimination under Title VII of the Civil Rights Act. Echoing Barrett’s ruling in Smith, the court wrote: “These statements, individually and collectively, do not amount to the sort of serious or pervasive comments that violate Title VII, as the Supreme Court understands it.”
Barrett has sided with employees over their employers in some discrimination cases.
In one case, she upheld a jury verdict against Costco for not protecting one of its workers from customer harassment. In another, Barrett came down on the side of a butcher who faced repeated sexual and racist harassment from coworkers and a supervisor.
Photo Credit: Getty Images / Caroline Brehman
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