If confirmed, Judge Kavanaugh likely to lean toward employer side of arguments

Posted by Charles Middleton on 08/15/2018

Q: Judge Brett Kavanaugh seems poised to become the newest justice on the U.S. Supreme Court. Is it expected that his presence will change the landscape of labor and employment issues across the land?

A: There's no doubt that President Donald Trump's nomination of the Honorable Brett M. Kavanaugh to succeed Justice Anthony Kennedy will impact the U.S. Supreme Court in a seismic fashion. Justice Kennedy has for years been the critical “swing” vote in tight decisions. Judge Kavanaugh could be the tipping point for a more conservative leaning court in all areas, including labor and employment.

Q: So, is it anticipated Judge Kavanaugh will be pro-business and pro-employer?

A: Judge Kavanaugh's judicial philosophy is regarded as conservative. Like the late Justice Antonin Scalia, he is a textualist and an originalist. As a consequence, he generally takes a narrow approach to employment-related lawsuits and statutory interpretation, and routinely rules in favor of employers. It's easy to paint with a broad brush then and state that Judge Kavanaugh always will side with employers and big business in general. However, with 12 years of experience on the federal bench for the U.S. Court of Appeals for the D.C. Circuit, a review of his past opinions reveals that hasn't always been the case. For example, in a 2016 case, Ortiz-Diaz v. U.S. Department of Housing and Urban Development, Judge Kavanaugh was part of a three-judge panel reviewing whether a refusal to grant a lateral transfer is not an adverse employment action under Title VII of the Civil Rights Act. Judge Kavanaugh wrote a concurring opinion arguing in favor of expanding the definition of adverse employment action to include discriminatory refusal to grant requests for lateral transfers. In Ayissi-Etoh v. Fannie Mae, a 2013 case, he wrote in support of the argument that the existence of a racially hostile work environment can be proven by conduct that's either sufficiently severe or pervasive, but doesn't have to be both. Using this standard as a guide, Judge Kavanaugh opined that, “in my view, being called the n-word by a supervisor — as Ayissi-Etoh alleges happened to him — suffices by itself to establish a racially hostile work environment.”

Q: If confirmed, where is Kavanaugh likely to make the most impact in terms of hot topics in labor and employment law?

A: The issue of religion in the workplace is a hot-button topic. In 2015 in the case Priests for Life v. United States Dept. of Health and Human Services, Judge Kavanaugh demonstrated support for an organization that was using the Religious Freedom Restoration Act to challenge the Affordable Care Act's contraceptive mandate requiring the provision of these services to insurance plan participants. This opinion seems to be a guidepost for where he could land on similar future intersections between religion and the workplace. Similarly, a Judge Kavanaugh dissent in the 2012 case National Federation of Federal Employees-IAM v. Vilsack provides some insight into his thoughts on another closely-watched issue — workplace privacy. In this case the plaintiff was a union that was challenging the constitutionality of a random and “suspicionless” drug testing policy for employees at a school for at-risk youth. Judge Kavanaugh wrote that, “To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem. ... That's especially true when, as here, the employees are one of the few possible conduits for drugs to enter the schools.” Based in part on this reasoning, Judge Kavanaugh argued the government's interests outweighed the privacy interests of the employees. Only time will tell if Judge Kavanaugh is confirmed to be the next justice on the Supreme Court, and what his legacy in that role will be. For now, though, as it relates to labor and employment issues it appears he will lean heavily toward the employer side of arguments, but not categorically.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, August 15, 2018