Judge Barrett on Employment Law I

Before reading this summary, please read the overview for context.

Grussgott v. Milwaukee Jewish Day School, Inc. (2018)

Judge Barrett listed this as number 6 of the ten (actually eleven) most important cases she decided while serving on the Court of Appeals for the 7th Circuit. She described the case as follows:

Miriam Grussgot, [sic] a Hebrew teacher, sued the Jewish Day School at which she once worked for allegedly violating the Americans with Disabilities Act. We concluded that the suit was barred by the ministerial exception protected by the First Amendment. Applying the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), we explained that Ms. Grussgot’s [sic] integral role in teaching her students about Judaism and the school’s motivation in hiring her demonstrated that her role furthered the school’s religious mission. We declined to treat the factors identified in Hosanna-Tabor as a rigid formula, looking instead to the totality of the circumstances. The Supreme Court later vindicated our approach in Our Lady of Guadaloupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

[2020 Questionnaire at 42-43]

In 2013, Miriam Grussgott began working at Milwaukee Jewish Day School. MJSD was a private school that did not require its staff to be Jewish but did teach religious subjects, require daily prayer, employ a rabbi, and possess all the required materials for Jewish religious ceremonies. [2] The school hired Ms. Grussgott to teach Hebrew and Jewish studies, in part because of her extensive background in teaching these subjects. [2] That same year, she also required medical treatment for a brain tumour, which impaired her memory and other cognitive functions. [3] She returned to work in 2014 but only as a Hebrew teacher and she was no longer required, or even permitted, to attend Jewish studies meetings. [3-4] Her Hebrew curriculum included Jewish studies elements, however, and she voluntarily attended community prayer sessions. She also discussed many aspects of Judaism with her pupils, although she contends that this was historical and cultural rather than religious. [4]

In March of 2015 a parent taunted Grussgott about her memory loss, Grussgott’s husband sent a critical e-mail in response from Grusggott’s work e-mail address, and MJSD fired Grussgott. [4] Grussgott sued the school, arguing that it had discriminated against her under the Americans with Disabilities Act. MJSD moved for summary judgment, arguing that Grussgott was a minister and therefore the school had free rein to fire her even if doing so would otherwise violated anti-discrimination laws. Judge J.P. Stadtmueller agreed and granted summary judgment for the defendant. [4]

The Court of Appeals issued a per curiam decision, which Judge Barrett joined. The Court applied the framework established by the Supreme Court of the United States in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. First, the Court considered whether MJSD was a religious institution that could claim the protection of the ministerial exception. The Court decided that it was, because “[r]eligious schools can be religious institutions capable of claiming the ministerial exception,” and rejected Grussgott’s arguments to the contrary. [5-6]

The Court then had to decide whether Grussgott could be considered a minister. Grussgott’s job title (grade school teacher) was purely secular and there was no evidence that Grussgott had understood or presented herself as a religious leader or ambassador. [7-8] Grussgott’s religious training was also less extensive than the called teacher in Hosanna-Tabor but, because Grussgott had been hired for her religious teaching experience and taught a Hebrew curriculum incorporating religious elements, the Court found this factor to favour the application of the ministerial exception. [8-9] Finally, that Grussgott taught aspects of Judaism and practised the religion with her pupils supported application of the exception, even if Grussgott herself considered these elements to be historical or cultural rather than religious. What mattered, the Court held, was that the School understood Grusgott’s duties to include promulgation of the faith. [9-12]

Therefore, only two of the four factors that had supported the application of the ministerial exception in Hosanna-Tabor were present. The Court decided, as had all other courts of appeal to consider the question, that all four factors were not necessary for the exception to apply. Given the school’s expectations of Grussgott and Grussgott’s own religious duties, it would be formalistic to deny that she was a ministerial employee. [6-7, 12] Conversely, the Court did not adopt the test proposed by the amicus Becket Fund for Religious Liberty, which would extend the exception to cover all employees who performed religious functions. [6, 12-13; Becket Fund Brief at 13-16] Rather, courts should consider the totality of the circumstances. [12-13]

Burlaka v. Contract Transport Services LLC (2020)

For some reason, I did not initially classify this as employment law. That was a mistake, for which I apologise.

Leonid Burlaka and his colleagues worked for Contract Transport Services, a company that transported goods short distances and between states. [1, 3] Mr. Burlaka and co. did not themselves transport goods across state lines but only performed “spotting” duties; that is, they moved trailers within facilities or delivered them to nearby locations. A significant minority of the trailers they moved were shortly thereafter moved to another state. [4-5]

The spotters sued Contract Transport, under the Fair Labour Standards Act and substantially identical state law, for failing to pay over-time. [1-2 and note 1 on page 2] Their jobs would be exempt from the overtime requirement, however, if their jobs fell within the jurisdiction of the Secretary of Transportation under the Motor Carrier Act. Under regulations and 7^th Circuit authority, that jurisdiction extended to drivers who could reasonably be expected to make an inter-state run, which included intra-state runs that were part of a continuous inter-state journey. [2-3]

Given the volume of inter-state commerce through the facilities at which the plaintiffs worked, Judge Barrett (on behalf of the Court of Appeals) held that the plaintiffs had a reasonable chance of being called on to drive a local part of an inter-state journey. This would bring them within the exception from labour laws. [5-6] Although there were steps between the plaintiffs’ delivery and the goods’ subsequent movement between states, Judge Barrett found that none of these steps were more than interruptions of the journey, which did not suffice to sever the connection between the deliveries and inter-state commerce. [6-7] The plaintiffs further argued that they drove incomplete products that needed to be completed before moving in inter-state commerce but Judge Barrett did not consider this argument, because the plaintiffs had not raised it before the district court. [Note 2 on page 7]

Therefore, the drivers were not entitled to over-time pay.

Equal Employment Opportunities Commission v. Costco Wholesale Corp. (2018)

Judge Barrett listed this as number 10 on the list of her ten (actually eleven) most significant cases. She described the case as follows:

Dawn Suppo, an employee of Costco Wholesale Corporation, was stalked by Thad Thomspon, a customer of Costco, for over a year. Traumatized by the experience, she took an unpaid medical leave, and when she did not return to work, Costco terminated her employment. The Equal Employment Opportunity Commission sued Costco on Suppo’s behalf, alleging that Costco had subjected her to a hostile work environment by tolerating Thompson’s harassment. Writing for the unanimous panel, we held that a reasonable jury could conclude that Thompson’s conduct was severe or pervasive enough to render Suppo’s work environment hostile. And although we agreed with the district court that Suppo could not recover backpay for the period of time after Costco fired her, we instructed the district court to consider whether she was entitled to backpay for some or all of her time on unpaid medical leave.

[2020 Questionnaire at 47-48]

Dawn Suppo worked part-time in Costco. During her work, a customer named Thad Thompson twice began peppering her with personal questions and she tried to evade his company by saying she had to return to work. A couple months later, she reported these incidents to her manager and told him she was scared. She saw Mr. Thompson again shortly afterwards, making paltry attempts to hide and disguise himself while watching her. Costco staff told him to leave her alone, which he (after some belligerent conduct) agreed to do, but she nevertheless called the police. The manager then told her to be friendly to Thompson and Thompson told the police he would avoid Costco.

Ms. Suppo saw Thompson many times over the next thirteen months. Sometimes he would try to flirt with her, sometimes he would try to touch her, and at least once he tried to film her without permission. [4-7] Suppo eventually secured a protective order against Thompson and then took a leave of absence but, even so, Costco told Thompson to shop at a different branch. [7-8] Unfortunately, a few months later Suppo needed to visit that branch of Costco for personal reasons, and when she encountered Thompson she swore at him repeatedly. [8] A year after she first took her leave of absence, Costco terminated Suppo’s employment. [8]

The Equal Employment Opportunities Commission sued Costco on behalf of Suppo, alleging that in failing to stop Thompson from stalking her, it had created a hostile work environment and thereby discriminated against her on the basis of sex. The jury found for Suppo and awarded compensatory damages of $250,000. [8] The parties made various post-trial motions, all of which Chief Judge Ruben Castillo denied. [8-9]

Costco appealed the denial of its motion for judgment as a matter of law. Specifically, it argued that Thompson’s misconduct was not severe enough to create a hostile work environment. [9] Judge Barrett, writing for the Court of Appeals, agreed that far lewder comments or more sexual touching had been found insufficient to create a hostile work environment. [10-11] Nevertheless, although the harassment must take place because of the plaintiff’s sex (which Costco conceded was the case), Judge Barrett cited 7th Circuit authority that the harassment need not be sexual in nature. [11-12] Judge Barrett held that Thompson’s constant presence at Costco, his shifty behaviour, his outburst after she took her leave of absence, and Suppo’s ability to secure a no-contact order in state court all permitted the jury to infer that Thompson’s conduct would have been intimidating or frightening to a reasonable person. [12-15 and note 2 on page 14] Costco did not challenge the jury’s finding that its response to Thompson was inadequate. [15]

The EEOC appealed the district court’s decision not to award back-pay. Judge Barrett held that the district court had been right to deny back-pay after Suppo was terminated, because refusing to return to work was equivalent to walking off a job rather than quitting, and so did not permit a claim for constructive discharge. [16-17] Judge Barrett held that back-pay while on medical leave was available, however, if the working conditions were objectively so severe that an ordinary person would feel compelled to take medical leave. [17-19]