As a libertarian, it wouldn’t bother me if Barrett were an ardent advocate of freedom of contract and property rights. But I’m sorry to report that a look at her actual rulings on workplace and employment cases shows they’re just not very big news one way or the other. Barrett has hewn carefully to the precedent and guidance handed down by the U.S. Supreme Court, just as you’d expect from an accomplished appeals court judge, and she has also stayed well within the mainstream of her own Chicago‐based 7th Circuit Court of Appeals.
Barrett has written few dissents in general, and so far as I have been able to find, none in this area. Nor have her rulings in workplace cases, any more than her rulings in general, tended to draw dissents from her colleagues. In Grussgott v. Milwaukee Jewish Day School, Inc., a unanimous panel on which she sat found that a job teaching Hebrew and Jewish studies at a private religious school was covered by the “ministerial exception” to anti‐discrimination law, a finding consistent with the approach of both liberal and conservative justices on the Supreme Court.
In a case this year, Purtue v. Wisconsin Department of Corrections, Barrett affirmed that a prison employee had been properly dismissed for having falsely accused an inmate of throwing an empty food box at her. Prison officials noted that the consequences of the assault allegation could have been extremely severe for the prisoner, perhaps even leading to his assignment to a maximum‐security facility. Rejecting the officer’s claim of sex discrimination, Barrett ruled that her misconduct was both the stated reason for her dismissal and a sufficient reason under the circumstances. (The case, by the way, is a reminder that the demand for “pro‐worker” judicial rulings is often at odds with genuinely progressive social goals, which include that of not letting inmates be falsely accused in situations like this.)
In discrimination claims, as commenters have pointed out, Barrett tends to take a fact‐intensive approach, and has repeatedly upheld the claims of bias plaintiffs. That includes the cases of a Chicago parks employee who won an award based on discrimination against her Hispanic background, a male butcher who recovered damages over harassment by his male grocery store co‐workers and supervisor, and a Costco employee who sued the retailer for not doing more to protect her from a customer who harassed her for more than a year. On the other hand, she ruled in favor of the Illinois highway department against a worker fired after repeated unsatisfactory evaluations for unsafe conduct, confrontational attitudes, and inability to keep up with training.
It’s true that Barrett took part as one vote among many at the full appeals court in two cases that touched on interesting and unresolved issues of employment law. In Kleber v. CareFusion, she joined an 8–4 ruling holding that the language of the Age Discrimination in Employment Act does not allow claims by job applicants over “disparate impact” (that is, over formally neutral policies or practices that adversely affect one group disproportionately, as opposed to intentional discrimination). The court relied on textualist reasoning, but it might also be noted that applying disparate impact rules regarding age to the hiring process could lead to some ripely absurd results. For example, it could cast doubt on the legality of employer recruitment at college job fairs, since that tends to screen out 70‐year‐olds. (Either Congress or the Supreme Court could take up and resolve this issue in future.)