Judge Alito on restaurants

It was bound to happen. Partisans are CAT-scanning everything Judge Samuel Alito has ever written, said or done, hoping to sluice some indication of his thinking on the flashpoint issues likely to be put before a Supreme Court that includes him. With that sort of scrutiny, it was only a matter of time until his past handling of restaurants and their employees was brought to light. And, no, we don’t mean his preference for the ethnic places of his native New Jersey.

One of the cases cited by critics wary of Alito’s civil-rights orientation is a 1996 discrimination case involving the dining-room captain of a restaurant in the landmark Hotel DuPont, in Wilmington, DE. After Barbara Sheridan was fired from the post in 1991, she alleged in a lawsuit that she had been sexually harassed by a superior, and denied a promotion because of it. When she complained, the 12-year Hotel DuPont veteran asserted in the filing, she was fired.

A jury disagreed with Sheridan’s contention that she had been harassed and denied a promotion out of spite, but still awarded her $30,000 in lost wages because it sympathized with her assertions that she had been unjustly fired. The presiding judge overturned the jury’s award, however, prompting Sheridan to appeal.

Alito sat on the appeals court that was given the case. It decided that Sheridan was entitled to the money because a jury was the appropriate body to determine whether a payment should be made, not the judge. The majority decision stated that Sheridan appeared to have evidence that she was the victim of discrimination, and that her employer failed to offer an adequate alternative explanation.

Alito dissented, arguing that an employee in such a case has to prove the employer discriminated against him or her, and not merely air a possibility that the employer fails to disprove.

Perhaps not coincidentally, the AFL-CIO has urged the Senate to reject Alito’s candidacy. In issuing its thumbs-down decision, the eroded labor union noted that the Supreme Court will likely hear a case next year involving a small New Orleans restaurant that fired a female employee in 2001. The woman then sued, alleging discrimination under the Civil Rights Act. But that Act only applies to establishments with 15 or more employees. The restaurant, Y&H, said it did not meet that threshold because the proprietors, their wives, and drivers did not figure into the count.

A jury sided with the discharged employee, Jennifer Arbaugh. But that decision has been repealed. The AFL-CIO cited it as one of “several anti-worker rulings” in which Alito has been involved.

Alito also heard a case in which Marriott Hotels was being sued by a housekeeping manager who alleged she was denied a promotion because of her race. The court found in favor of the woman, but Alito dissented, arguing that the plaintiff had failed to refute all of the reasons Marriott had provided for elevating someone else.