Has Judge Amy Coney Barrett ever handled an appeal involving the EEOC? You bet she has!

In Tuesday’s installment of “Amy Coney Barrett Week” at The Employer Handbook, we explored Judge Barrett’s determination that a jury’s $300K national original discrimination award should survive appeal.

Today, I have another case for you in which Judge Barrett handled the appeal of a jury verdict for the plaintiff. But, this time, the plaintiff is none other than the U.S. Equal Employment Opportunity Commission. 

Yes, visitors to your workplace can also create hostile work environments for your employees.

The kind of hostile work environment that can result in a quarter-million-dollar jury award.

Lauren Zumbach of the Chicago Tribune reported here about the Illinois jury’s verdict back in December 2016, which includes a description of the facts of the case:

[A] former part-time employee who complained to the EEOC, worked as a front-end assistant, helping customers box purchases and returning items to shelves [for her employer], according to court records.

[The former employee] alleged [the defendant-employer] didn’t do enough to intervene after a customer, over the course of about a year, repeatedly asked her on dates, hugged and touched her without consent, filmed her at the store and continued harassing her after she reported the incidents to managers. She eventually sought a restraining order against the man, according to court records.

Although the jury declined to award punitive damages, it did award the woman $250,000 in compensatory damages.

Enter Sandman Judge Barrett

Writing for a three-judge panel in this 2018 opinion, Judge Barrett drilled down into the employee’s hostile work environment claim, specifically, whether the customer’s behavior would have offended a reasonable person standing in the employee’s shoes.

(Among other things, a plaintiff alleging a hostile work environment must show that the offensive conduct is severe or pervasive from both a subjective and objective point of view.)

The employer described the customer’s behavior as “tepid.” And, the Seventh Circuit acknowledged that it had seen worse. But, the only thing that matters is the conclusion of a reasonable jury. And here’s what Judge Barrett had to say about that:

A reasonable juror  could conclude that being hounded for over a year by a customer despite intervention by management, involvement of the police, and knowledge that he was scaring her would be pervasively intimidating or frightening to a person “of average steadfastness.”…Given the state court’s judgment that [the customer] engaged in a course of conduct that would “cause a reasonable person to fear for his or her safety … or suffer emotional distress,” it would be quite something for us to say that a jury acted unreasonably by reaching the same conclusion. 

However, it wasn’t a total victory for the EEOC.

As Phil Miles points out in his post over at Lawffice Space, “Judge Barrett, however, reversed the trial court by holding that the employee could collect back pay for the time she was on unpaid leave – but only if the sexual harassment forced her to take the unpaid leave. She remanded the case to the trial court to decide that question.”

I’ll also point out that Chief Judge Diane Sykes, a George W. Bush appointee and once considered a possible Trump nominee for the Supreme Court herself, joined in Judge Barrett’s decision.

Your takeaway.

If Judge Barrett makes it to the  Supreme Court, she won’t be weighing jury verdicts. She won’t be applying existing employment law to a particular set of factual circumstances either. Her role will involve settling splits in authority between various appellate courts. And, in doing so, she will create new laws.

That said, if you find yourself in the unenviable position of having to defend an employment claim, holler at your boy! it is way more likely than not that the law governing your dispute will be well settled — like it was in the case hostile work environment case we discussed today.

And when the law and facts are on your side, you generally prevail, regardless of which the side of the “v” on which you litigate the employment dispute.