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Brett Kavanaugh’s Position On Workplace Racial Discrimination Is More Liberal Than Amy Coney Barrett’s

It turns out that even embattled Supreme Court pick Brett Kavanaugh takes a more liberal position on racial justice in the workplace than Amy Coney Barrett. While Kavanaugh’s and Barrett’s recorded decisions were years apart, they each had the opportunity to weigh in on whether being called a racial slur in the workplace made a hostile and discriminatory work environment.

Brett Kavanaugh left of ACB
[Photo by Zach Gibson/Getty Images]

The Associated Press reported this week on some decisions by Amy Coney Barrett over her tenure on the bench. In one notable, and quite recent decision, she gave an opinion on a case in which a Black Department of Transportation employee, Terry Smith, was called a racial slur by a supervisor, Lloyd Colbert. As it happens, Brett Kavanaugh was faced with an essentially identical question in 2013.

Barrett’s position? The use of the word alone isn’t sufficient to prove a hostile work environment.

“Smith introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace. To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race. His tenure at the Department was rocky from the outset because of his poor track record.”

By contrast, Kavanaugh’s position in his 2013 case on a federal appeals court was that “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment.”

He went on to describe the epithet — the same one as in Barrett’s case — saying, “No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans,” and affirmed that case law supports a single incident being sufficient to define a hostile work environment.

Kavanaugh’s confirmation hearings were defined in large part by questions about allegations of sexual assault and attempted rape, as reported by Time during the process. One accuser even confronted him in Senate hearings, saying that he targeted her at a frat party in 1982.

Amy Coney Barrett has repeatedly, during the hearings, brought up her children, reminding participants and viewers that she has adopted children from Haiti, describing herself as the mother of a mixed-race family, saying, according to Politico, that the George Floyd killing was very personal for her family, explaining, “given that I have two black children.”

However, in her position as a judge, she took a position on workplace discrimination that’s right of even her colleague-to-be, Brett Kavanaugh.



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