The SCOTUS contenders on employment law: Amul Thapar

How would Supreme Court contender Amul Thapar be for employers?

It's Fourth of July week, which means not much is happening in the world of politics. (Yay!)

Judge Amul Thapar

But on Monday, President Trump is expected to announce his nomination for Justice Anthony Kennedy's Supreme Court seat. During this period of relative calm, I thought it might be helpful to look at some employment-related decisions from the judges on the President's short list.

We will start today with Judge Amul Thapar, who is currently on the U.S. Court of Appeals for the Sixth Circuit. Judge Thapar was born in Troy, Michigan, in 1969. His undergraduate degree is from Boston College, and his law degree is from the University of California at Berkeley. In 2008, President George W. Bush appointed him as a U.S. District Court Judge in the Eastern District of Kentucky. When Supreme Court Justice Antonin Scalia died in 2016, President Trump considered Judge Thapar before deciding on Justice Neil Gorsuch. Judge Thapar joined the Sixth Circuit on May 25, 2017.

A more detailed bio is available here.


Using no particular methodology, I chose three employment law decisions by Judge Thapar. All are from the time that Judge Thapar was a district court judge. Based on these three decisions, my take is that Judge Thapar is certainly willing to give fair consideration to the employer's view but is not a reflexive "defense judge." He also writes well and is quite witty.

Case No. 1: Paulson v. Holder (2012). The plaintiff sued for sexual harassment and retaliation under Title VII. Judge Thapar granted summary judgment to the employer on both claims. First, he said, the plaintiff's EEOC charge did not put the employer on notice that she was claiming sexual harassment, which defeats a harassment claim under Title VII.

The plaintiff also claimed that the employer retaliated against her by denying her a bonus and lowering her performance evaluation rating after she complained about the alleged harassment. Judge Thapar found that denial of the bonus was not a "materially adverse action." In addition, it was not retaliation that the employer gave her an overall "Exceeds Expectations" performance rating after her complaints, when previously she had been rated "Outstanding." According to Judge Thapar, "Faint praise may be damning, but it does not support a Title VII action." LOL.

Case No. 2: Click v. Thompson (2012). In Click, the plaintiff sued his government employer, claiming that he was terminated and not rehired (twice) because he was an ardent Democrat and his boss was a Republican. The plaintiff's legal claims were under 42 U.S.C. Section 1983 based on violation of his First Amendment rights. Judge Thapar dismissed two of the claims (the initial termination, and one of the failures to rehire) based on the fact that the claims were untimely. However, he refused to dismiss the failure to rehire that fell within the statute of limitations.

Even though failure to hire is an "adverse employment action" for First Amendment purposes, the boss tried to argue that a failure to rehire was not. Judge Thapar responded, "[The Defendant]'s argument puts more weight on the prefix 're' than those two letters can bear." Hehe.

Case No. 3: Farmer v. Dixon Electric Systems (2013). The plaintiff, an electrician, was fired from her job after she was caught smoking on a hospital construction site. The plaintiff claimed that male electricians were caught smoking but were not fired. This was apparently true, but there was a non-discriminatory reason: Smoking was not a termination offense until the hospital demanded that it become one. The plaintiff was the first employee to be caught smoking at the site after the new policy went into effect. So Judge Thapar found that the plaintiff had not been discriminated against when she was fired.

Faint praise may be damning, but it does not support a Title VII action." -- The wit and wisdom of Judge Amul Thapar 

The more interesting part of the case involved the use by the men of "portalets" on the worksite. These were porta-potties, but they had no tops, so passersby could see some of what was going on, if you know what I mean and I think you do know what I mean. Apparently, the plaintiff, as well as the men in the portalets, were all embarrassed at the level of exposure, and complaints were made. (Women were allowed to use real bathrooms.)

In her lawsuit, the plaintiff claimed it was sexual harassment for her to have to see the guys doing their thing. But Judge Thapar found that it was not "harassment based on sex" because men were at least as humiliated by the arrangement as the plaintiff was. He also found that the plaintiff's brief "exposures" to the men were not "severe or pervasive."

Finally, the plaintiff claimed she was terminated in retaliation for complaining about the portalet arrangement. Judge Thapar nixed this claim, too, noting that the termination was for smoking at the construction site, that the plaintiff's employer actually did not want to terminate her but did so only because the hospital insisted on it, and that -- although the plaintiff complained about the portalets -- she did not claim that she thought she was being sexually harassed. Therefore, although she had complained, her complaints were not legally protected.

(The plaintiff also had claims for emotional distress.)

Judge Thapar granted summary judgment to the employer on all counts. No witty remarks in this opinion, unfortunately, but it's still an interesting read to someone who never heard of "topless portalets" until now.

Have a happy Fourth, and I'll follow up this week with more analysis of employment-related opinions from the judges on President Trump's short list.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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