Monday, September 28, 2020

Judge Amy Coney Barrett and the case of the Costco stalker

By now, I'm sure you know that Pres. Trump nominated 7th Circuit judge, Amy Coney Barrett, to the Supreme Court. First, here's a great compendium of her seventh circuit decisions from SCOTUSblog. On Twitter, I asked them to add "tags" so that we can better find different types of cases (like, maybe "employment"). SCOTUSblog graciously replied "No promises, but we'll be working on this." 

Here's one employment law case (Title VII hostile work environment) in which Judge Barrett wrote the Court's opinion: EEOC v. Costco Wholesale Corporation. The EEOC won a jury verdict on behalf of a Costco employee, who was stalked by a customer. 

On the first issue presented, Judge Barrett sided with the employee, denying Costco's motion for judgment as a matter of law. Costco argued that the harassment did not reach the "severe or pervasive" threshold. Judge Barrett rejected the argument, noting that Costco focused only on the customer's statements and touches, which were not as egregious as some other cases. But, Judge Barrett noted other "constant" harassment: 

He followed Suppo around the store, watching her from around corners. He stared at her from behind clothes racks, disguised in sunglasses and a hat. He monitored her movements and asked her to account for her conversations with men. He made trips to the warehouse to see Suppo rather than to shop.

Judge Barrett sided with the employee on this issue, concluding that the harassment did meet the "severe or pervasive" test. She provided more of a mixed result on the other issue presented in the case though.

The employee took unpaid leave for about 14 months at which time Costco terminated her because she had exhausted her available leave. Judge Barrett held that the employee could not claim constructive discharge because Costco actually terminated her. And, she could not collect back pay following her termination because she was not terminated for a discriminatory reason. Thus, Judge Barrett affirmed the trial court's conclusion that the employee could not collect back pay after her termination.  

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.  

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