LABOR AND EMPLOYMENT LAW SECTION – STATE BAR OF MICHIGAN LABOR AND EMPLOYMENT LAWNOTES Volume 30, No. 4 Winter 2021 Department sued for wrongful termination, Justice Barrett again JUSTICE AMY CONEY affirmed a trial court’s denial of an employer’s motion for BARRETT’S HISTORY WITH judgment as a matter of law and for a new trial. In Vega v. Chicago Park District, 954 F.3d 996 (7th Cir. 2020), the plaintiff alleged that EMPLOYMENT CASES her employer terminated her because of her national origin. While the plaintiff did not have direct evidence of discrimination, she Regan K. Dahle did have extensive circumstantial evidence, including a 20-year Butzel Long positive employment record; the fact that the defendant violated its commitment to the union not to terminate for first offenses; proof In her approximately three years on the bench of the 7th that there were multiple factual errors in the investigation that led Circuit Court of Appeals, Justice Amy Coney Barrett appears to to the plaintiff’s termination; and evidence that the defendant have authored seven opinions involving questions under Title VII mistreated other Hispanic employees and disciplined Hispanic of the Civil Rights Act of 1964 (Title VII), the Americans with employees more harshly than non-Hispanic employees. Justice Disabilities Act (ADA) and the Fair Labor Standards Act (FLSA). Barrett concluded that the circumstantial evidence was sufficient Four opinions held in favor of the employer, and three opinions held to support a jury verdict in the plaintiff’s favor. in favor of the employee. In her first employment case on the bench, Justice Barrett In cases involving what she seemed to believe were less affirmed the trial court’s denial of an employer’s motion for egregious or substantial facts, Justice Barrett found in favor of the Weil v. Metal Technologies, Inc., judgment as a matter of law and for a new trial. In Smith v. employer. For example, in 925 Rosebud Farm, Inc., 898 F.3d 747, 752 (7th Cir. 2018), the F.3d 352 (7th Cir. 2019), Justice Barrett affirmed a district court plaintiff alleged that his co-workers groped and grabbed him and decision to decertify an FLSA collective action that the same simulated sex acts in front of him, and that one of his co-workers district court had previously certified. The plaintiff argued that the put his hands down the plaintiff’s pants. The plaintiff also claimed court could not decertify the collective action, because the that his co-workers slashed his tires and threatened him with employer had not offered any new evidence. Justice Barrett knives. Although Justice Barrett found that the facts of the case disagreed, reasoning that nothing in Fed.R.Civ.P. 23 requires there were sufficient to support a jury verdict in the plaintiff’s favor, she to be new evidence to justify a decertification decision. noted that “unwanted sexual behavior--including the touching of In a case about which she was questioned at her confirmation genitals and buttocks--is not necessarily actionable under Title hearing, Justice Barrett concluded that the plaintiff’s supervisor did VII,” and that “Title VII is an anti-discrimination statute, not an not create a racially hostile work environment by once calling the anti-harassment statute.” plaintiff the “n” word, where the plaintiff also experienced non- Shortly after issuing the opinion in Smith v. Rosebud Farm, race-based harassment. According to Justice Barrett, being called Inc., Justice Barrett affirmed a district court’s decision denying a “n---r” did not alter the plaintiff’s conditions of employment and Costco’s motion for judgment NOV in a sexual harassment lawsuit did not cause the plaintiff to suffer any “additional or different filed by the EEOC against Costco on behalf of a former Costco distress” than the non-race based harassment he suffered. Smith v. employee. The former employee alleged that a Costco customer Illinois Dep't of Transp., 936 F.3d 554, 561–62 (7th Cir. 2019). unlawfully harassed and stalked her for over one year, leading her In Purtue v. Wisconsin Dep't of Corr., 963 F.3d 598, 603 (7th to secure a one-year No Contact Order against the customer, and Cir. 2020), reh'g denied (July 31, 2020), Justice Barrett affirmed that Costco did not promptly remedy the situation. While Justice summary judgment in favor of the employer in a gender Barrett agreed with Costco that the customer’s conduct, which discrimination claim, discounting the plaintiff’s statistical ultimately led Costco to ban him from all Costco locations, was not evidence of a disparity between the termination rates of female as lewd or amorous as in other cases where an employer received and male employees. Justice Barrett agreed with the district court summary judgment, she also noted that actionable harassment that the plaintiff’s statistical evidence was immaterial, because the does not have to be sexual; it just has to be because of sex. Here, plaintiff had no evidence that the statistical comparators were where the customer filmed the employee while she was working; similarly situated with her in all material respects. screamed profanities at the employee while she was shopping with Finally, in Graham v. Arctic Zone Iceplex, LLC, 930 F.3d 926 her father at a different Costco location; hid in the Costco aisles (7th Cir. 2020), Justice Barrett affirmed summary judgment for to watch the employee while she worked; came to Costco just to the employer in an ADA failure-to-accommodate claim, because see the employee; and questioned the employee about the plaintiff had not provided his employer with enough notice conversations she had with other men at Costco, Justice Barrett that his work restrictions prevented him from performing the concluded that it was reasonable for the jury to conclude that this duties of his new job. Regarding the plaintiff’s disability customer created a hostile work environment for the employee. discrimination claim, Justice Barret also affirmed summary EEOC v. Costco Wholesale Corp., 903 F.3d 618 (7th Cir. 2018). judgment for the employer, finding it immaterial that the employer Earlier this year, in a national origin discrimination claim in had never written-up the plaintiff for many of the policy violations which a Hispanic former employee of the Chicago Parks leading up to plaintiff’s discharge. I Page 2 LABOR AND EMPLOYMENT LAWNOTES (WINTER 2021) CONTENTS DETERMINING WHEN A COVID-19 ILLNESS IS Justice Amy Coney Barrett’s History with Employment Cases . 1 “WORK-RELATED” AND Determining when a COVID-19 Illness is“Work-Related” and “Recordable” under OSHA Guidance . 2 “RECORDABLE” UNDER How Not to Write a Supreme Court Rule . 3 Michigan Arbitration and Mediation Case Law Update . 4 OSHA GUIDANCE How to Maximize your Article’s Impact . 8 Aaron V. Burrell David Porter Wins Lawnotes Caption Contest . 8 Dickinson Wright PLLC Fad Words—Les Paroles N’Engagent À Rien . 9 How Candor May Get Clients . 9 With the exception of certain low-risk industries, many Influencing Expert Opinions . 10 employers with more than 10 employees, especially those engaged MERC Update . 11 in manufacturing, are required to keep a record of serious work- Tackett, Reese, and the Mercuriality of related injuries and illnesses. In our current climate, questions arise: Stare Decisis—The Supreme Court’s Is COVID-19 a “recordable illness?” And under what circumstances Selective Disregard for its Own Precedent . 12 should an employer record? For What It’s Worth . 14 Under its May 19, 2020 Enforcement Memorandum, the United The Case for Embracing Diversity States Department of Labor’s Occupational Safety and Health and Inclusion in our Profession . 15 Administration (OSHA) reinforced its position that COVID-19 is a Shirley Siegel, Civil Rights Lawyer: “Hard Work” . 16 “recordable illness.” According to the Memorandum at 1, employers The Lawsuit Market . 17 must record cases of COVID-19 if three conditions are met: What can Appellate Attorneys do for you? . 19 1. The case is a confirmed case of COVID-19, as defined by Abraham Lincoln and Michiganders the Centers for Disease Control and Prevention; Daisy Elliott, Melvin Larsen, and Lewis Cass . 20 2. The case is work-related as defined by 29 CFR § 1904.5; Sedentary Attorneys: Beware the Dangers of Sitting . 21 3. The case involves one or more of the general recording “Never Stand Up when you can Sit Down, criteria set forth in 29 CFR § 1903.7. and Never Sit Down when you can Lie Down.” . 21 An employer must consider an injury “work-related” if an The 2020 Title IX Regulations . 22 “event or exposure in the work environment either caused or STATEMENT OF EDITORIAL POLICY contributed to the resulting condition or significantly aggravated Labor and Employment Lawnotes is a quarterly journal published under the auspices of the Council of the Labor and Employment Law Section of the State Bar of Michigan. Views expressed in articles and case commen- taries are those of the authors, and not necessarily those of the Council, the LOOKING FOR Section, or the State Bar. We encourage Section members and others inter- ested in labor and employment law to submit articles, letters, and other ma- terial for possible publication. Lawnotes Stuart M. Israel, Editor John G. Adam, Associate Editor Contributors! COUNCIL DIRECTORY Chair Lawnotes is looking for contributions of Michelle Crockett . Detroit interest to Labor and Employment Law Section Vice Chair John Runyan . Detroit members. Secretary Contributions may address legal develop - Keith Brodie. Grand Rapids ments, trends in the law, practice skills or Treasurer techniques, professional issues, new books and Heidi Sharp . Clinton Township resources, etc. They can be objective or opin - Council Members Nedra Campbell .