What Justice Barrett's Supreme Court Confirmation Means for Employers

Author: David B. Weisenfeld, XpertHR Legal Editor

October 26, 2020

There is little question that the Senate's 52-48 vote Monday night to confirm Judge Amy Coney Barrett to fill the seat of the late Justice Ruth Bader Ginsburg will have a big impact on employers and employees.

Considering the seminal role that Justice Ginsburg played in employment discrimination cases, Justice Barrett's views on workplace disputes will be scrutinized closely. And the implications may be felt almost immediately in one notable area.

Affordable Care Act Takes Center Stage

While all eyes are on next week's election, the Supreme Court will hear arguments in a monumental Affordable Care Act (ACA) case on November 10 that could shape the future of health care. In California v. Texas, a group of 18 states (led by Texas) are seeking to have the entire ACA struck down.

The states are challenging the ACA's minimum essential coverage provision (known as the individual mandate). Those who fail to maintain that minimum level of health insurance coverage must pay a financial penalty to the IRS. These states are also challenging provisions that guarantee coverage for people with preexisting health conditions, such as cancer, diabetes or lupus.

The Supreme Court upheld the ACA in a 5-4 vote in 2012 with Chief Justice John Roberts joining the Court's four more liberal members. But with one of those members, Justice Ginsburg, now having been replaced by President Trump's nominee, Justice Barrett, this case places the ACA's future in doubt. The Trump administration stripped the mandate's tax penalties in 2017, and ACA opponents claim the law exceeds Congress's constitutional power.

Justice Barrett, a former law clerk of Justice Antonin Scalia, wrote a 2017 law review essay while a University of Notre Dame law professor in which she said, "Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute."

With the future of health insurance for millions of Americans at stake amid the coronavirus pandemic, many observers view this case as the most significant on the Supreme Court's schedule this year.

Employment Law Rulings

Justice Barrett served three years on the Chicago-based 7th Circuit Court of Appeals and during that time she joined rulings favoring both employers and employees. "Considering her short time with the [appellate] court, there is not too much to comment on," said Chicago employment attorney Stacey Smiricky, of Faegre Drinker. Smiricky added, "I get the indication from the cases I've reviewed that she is not strictly one-sided."

For instance, Barrett sided with employers in a pair of class-action cases, including a ruling this summer that compelled a group of Grubhub delivery drivers into arbitration. Since a mandatory arbitration agreement barred class actions, this essentially ended the lawsuit.

But as Smiricky notes, Barrett's votes in employment cases have not been universally on the side of management. Most notably, she backed the Equal Employment Opportunity Commission (EEOC) in upholding a jury verdict against Costco for failing to protect an employee from harassment by a customer.

It also is worth noting that Justice Neil Gorsuch - President Trump's first Supreme Court nominee - authored the landmark June ruling in Bostock v. Clayton County that firing an individual merely for being gay or transgender violates Title VII of the Civil Rights Act. Thus, predictions are an imperfect science.