What Kavanaugh's Supreme Court Confirmation Means For Employers

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The U.S. Senate has confirmed Brett Kavanaugh's nomination to the Supreme Court after weeks of controversy involving sexual-assault and harassment allegations. The 50-48 vote was mostly on party lines, with Republicans voting for and Democrats voting against his lifetime appointment to the high court. Here's an overview of how he has ruled on workplace issues.

Employers can expect Kavanaugh to be a strict constructionist, sticking to the text of labor and employment statutes and not expanding workers' rights, said John Maley, an attorney with Barnes & Thornburg in Indianapolis. "In traditional labor law matters, employers can expect scrutiny of [National Labor Relations Board] decisions, including a dose of common sense on occasion," he said.

Mark Phillis, an attorney with Littler in Pittsburgh, said Kavanaugh's rulings in labor and employment cases don't reveal any leanings either in favor of or against workers. "While some commentators have noted that he sided more often with employers than employees, a review of his decisions reveals that his opinions are well within the mainstream and are consistent with rulings in other courts of appeals," he added.

AFL-CIO President Richard Trumka, however, said Kavanaugh "is anything but a neutral." Kavanaugh's "confirmation would potentially lock in the pro-corporate tilt of the court for a generation," Trumka said during a Sept. 7 speech at Yale Law School.

Kavanaugh served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit since 2006 when he was appointed by former President George W. Bush. President Donald Trump nominated Kavanaugh to replace Justice Anthony Kennedy, a Republican-appointed associate justice who announced his retirement in June.

"Justice Kennedy was viewed as a reliable vote for the employer community in many cases, and I would not expect much to change with Judge Kavanaugh," said Michael Passarella, an attorney with Olshan Frome Wolosky in New York City.

Labor Relations

National Labor Relations Board (NLRB) decisions involving collective bargaining and other rights under the National Labor Relations Act (NLRA) can be challenged in federal court. As a federal appeals court judge, Kavanaugh sometimes ruled against the NLRB's pro-employee decisions.

A case that is often cited as providing insight into Kavanaugh's record involved customer-facing employees who wore union-sponsored T-shirts, noted Courtney Ofosu, an attorney with Reed Smith in Chicago. In that case, Kavanaugh issued a unanimous opinion holding that a company did not run afoul of the NLRA by prohibiting employees who interacted with customers from wearing pro-union shirts bearing the words "inmate" and "prisoner."

While the NLRA generally protects workers' right to wear union gear, Kavanaugh relied on a "special circumstances" exception, finding that the company could lawfully prohibit and discipline employees who donned the T-shirts, Ofosu said. The exception allows a company to prohibit employees from displaying messages on the job that the employer reasonably believes may harm its reputation or relationship with customers. Kavanaugh started the opinion with the sentence, "Common sense sometimes matters in resolving legal disputes."

Employment Discrimination

Though Kavanaugh has sided with employers in some cases, he has also reversed district court rulings made in favor of employers, Maley said. In one notable race-discrimination case, he wrote that a single insult may be sufficiently severe to create a hostile work environment. In that case, a supervisor allegedly called the plaintiff the "n-word."

"It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins," Kavanaugh wrote in a concurring opinion in the case. "But, in my view, being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment."

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

In another race-discrimination case, Kavanaugh and his colleagues reversed their own prior ruling and held that an employer's decision to deny a lateral transfer—a decision that was allegedly motivated by racial animus—was an adverse employment action under Title VII of the Civil Rights Act of 1964.

Kavanaugh's track record on labor and employment matters is not likely to change if he is appointed to the bench, and he may be perceived as continuing to narrowly interpret the law in ways that generally favor employers, said Jill Vorobiev, an attorney with Reed Smith in Chicago. "However, his concurrences in these cases reveal his willingness to side with employees and deliver impactful decisions in their favor," she said. "As a result, his nomination should not necessarily be viewed as a slam-dunk for companies whose employment cases may come before him."

LGBT Rights

One area where Kennedy tended to disagree with other conservative members of the court was on lesbian, gay, bisexual and transgender (LGBT) and other social issues, Passarella said. For example, in 2015, the Supreme Court ruled in a 5-4 decision that the 14th Amendment requires states to recognize same-sex marriages performed in other states and to license marriages between two people of the same sex. Kennedy authored the opinion, which was joined by the four liberal justices and opposed by the other four conservative justices.

Kavanaugh might rule differently from how Kennedy would have been expected to rule on such issues, Passarella said.

In the next few years, the high court may decide whether Title VII prohibits employment discrimination based on sexual orientation. Federal appeals courts disagree on this issue, which makes it ripe for Supreme Court review. Kavanaugh's vote could be decisive, Ofosu noted. 

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