Former Supreme Court Justice Ruth Bader Ginsberg was widely considered to be one of the most employee-friendly justices in the Supreme Court’s modern era. Through her lengthy tenure on the court, Justice Ginsburg authored several opinions ruling in favor of employees and unions and has largely broadened the rights of employees. With the recent appointment of Justice Amy Coney Barrett to fill the seat of Justice Ginsburg, one should expect a significant impact on the rights of employees and the future of employment law. This article will examine the effect of Justice Barrett’s appointment on employer rights, specifically focusing on religious freedoms in the workplace as well as employee discrimination claims. Justice Barrett’s appointment will ultimately create a dynamic in the Court that will more than likely broaden the rights of employers.

Before we delve into Justice Barrett’s effect on employment law, it is worth taking a moment to fully develop her judicial philosophy. Justice Barrett largely takes after former Justice Antonin Scalia in that she hails from a politically conservative background and espouses the interpretative methodologies of textualism and originalism. Textualism is a form of statutory interpretation that tends to focus on the language of the law at the time the law was written as well as what the people understood the words of the law to mean at the time the law was enacted. Originalism, on the hand, focuses more on the intent of the founders in drafting the language of the Constitution. Justices Roberts, Gorsuch, Alito, Thomas, and Kavanaugh all seem to ascribe to either textualism or originalism or both, making it more than likely the case that Justice Barrett will side on decisions with this bloc of the court. Historically, this bloc of the court tends to side with employers over workers and emphasizes employers’ rights and religious freedoms in its decision-making process. 

Justice Barrett’s track record, along with her judicial philosophy, creates a significant chance that her appointment will largely broaden religious-based protections for employers and therefore expand upon their rights. For example, in 2012, Justice Barrett signed a letter condemning a certain provision of the Affordable Care Act that provided that employees have access to no-cost birth control through their insurance healthcare plans. Justice Barrett opined that employers have a right to claim religious objections and deny such coverage. Further, in the 2018 case of Grussgott v. Milwaukee Jewish Day Sch., Inc., Justice Barrett joined a 7th Circuit panel in expanding the application of the ministerial exception under the Americans with Disabilities Act. Rather than applying the test established by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., which would have essentially resulted in a stalemate, the 7th Circuit created its own totality-of-the-circumstances test, effectively resulting in a ruling in favor of the employer. Lastly, in Illinois Republican Party v. J.B. Pritzker, Justice Barrett joined the 7th Circuit’s opinion in allowing Illinois to exempt religious services from limits on large gatherings during the ongoing Covid-19 pandemic further cementing her support for religious-based protections.

These instances indicate that with Justice Barrett, the Supreme Court will more than likely provide greater consideration towards an employer’s religious freedoms. The extent of this consideration, however, remains to be seen. For example, it is clear that Justice Barrett favors an employer’s religious freedoms over a worker’s right to contraceptives, but the question becomes obscured when an employer’s religious beliefs conflict with a worker’s sexual orientation or gender identity. In other words, will an employer’s religious beliefs allow them a greater basis to discriminate? The answer, unfortunately, is unclear at the moment. However, Justice Barrett’s views on religious freedoms remain transparent and one should expect employers to receive greater rights under the guise of religious belief.

With Justice Barrett’s judicial philosophy and focus on religious freedoms in the workplace, this era of the Court will lend greater rights to employers and lessen the rights of the worker. Therefore, it is crucial that at this time employees and workers who have been wronged or discriminated against seek advocates who are knowledgeable of employment law and who are dedicated to the work to ensure that they maintain and enforce their rights. In enforcing their rights, workers have historically faced a long, uphill battle, but the appointment of Justice Amy Coney Barrett has ushered employment law into a new reality; one that favors the employer over the worker; one that presents workers with a far steeper hill.