On July 9, 2018, President Trump nominated Judge Brett Kavanaugh to the Supreme Court of the United States. What does this mean for employers? Let’s take a look.
Before his nomination to the Supreme Court, Judge Kavanaugh served on the D.C. Circuit Court of Appeals for 12 years, and during his time on the bench, he authored several opinions on labor and employment law. Critics of his opinions have labeled him as pro-business and the AFL-CIO has expressed concern at his nomination on behalf of labor union members. His supporters prefer to classify him as a staunch opponent of over-regulation. Politics aside, Judge Kavanaugh has dissented in some notable labor and employment law cases and authored majority opinions that give businesses greater flexibility in controlling employee conduct. He doesn’t always leave workers in the lurch, but the number of his decisions that favor employees pale in comparison to those that are pro-business and anti-regulation.
For example, Judge Kavanaugh notably dissented in a 2014 case involving the death of a SeaWorld trainer who was dragged underwater by a killer whale during a performance. The majority in SeaWorld of Florida v. Perez found that SeaWorld had violated OSHA’s General Duty Clause by failing to protect its employees from the hazards associated with their jobs. Judge Kavanaugh argued instead that the trainers had assumed the risk of working with dangerous animals, and that neither OSHA nor society should decide when willing participants need to be protected from themselves. Judge Kavanaugh insisted that regulation of SeaWorld employees was akin to regulating a football player on a punt return and declared that the Department of Labor’s authority in such arenas was inappropriate. Had Judge Kavanaugh led the majority there would arguably be no obligation for companies in the entertainment industry to provide even minimal safeguards, as long as SeaWorld’s employees agreed to perform dangerous stunts.
In another business-friendly dissent, Judge Kavanaugh argued that undocumented workers did not have the right to join unions and collectively bargain. The undocumented workers who were the plaintiffs in Agri Processor v. NLRB filed an unfair labor practice charge against their employer for refusing to bargain with them after they voted to join a union. The employer insisted that the undocumented workers did not qualify as “employees” and therefore were not entitled to the rights granted by the NLRA. The majority of the D.C. Circuit, referring to Supreme Court and NLRB precedent, held that the NLRA’s definition of “employee” was broad and included undocumented workers, rejecting the company’s argument. Judge Kavanaugh relied on the same Supreme Court case as the majority to argue the opposite conclusion. In Judge Kavanaugh’s view, the NLRA had to be interpreted in the context of recent immigration laws that classified undocumented workers as unlawful employees.
In a surprise twist, Judge Kavanaugh was part of a panel that found that the single use of a racial slur could create a hostile work environment. In Ayissi-Etoh v. Fannie Mae, the plaintiff, an African–American man, filed a charge of discrimination with the EEOC after a supervisor shouted at him using a racial slur. Another supervisor then allegedly told him to either drop his discrimination claim or be terminated, and shortly after the plaintiff was fired. While the majority indicated that the single use of the racial slur may have been enough on its own to show a hostile work environment, Judge Kavanaugh wrote his own concurring opinion to emphasize that he believed this is one of the rare cases where a single instance did create a hostile work environment. According to Judge Kavanaugh, the instance was “sufficiently severe,” citing several literary sources referring to the term as the “most offensive word in English.”
Judge Kavanaugh’s opinions during his time on the D.C. Circuit indicate a tendency to rule in favor of employers and against employees. During his long tenure on the bench, Judge Kavanaugh has also ruled that employers can prohibit employees from wearing union t-shirts when interacting with customers, that employees do not have a private cause of action under OSHA, and that employers can require employees to waive their right to picket. However, he doesn’t always side with the employer—it was certainly notable that he went out of his way to write a concurring opinion in Ayissi-Etoh, opining that one racial slur is enough to create a hostile work environment. He has also ruled that discriminatory lateral transfers can sometimes be actionable. Those decisions may have been the result of statutory interpretation rather than considerations of policy, but it shows that when a statute clearly supports employees, Judge Kavanaugh might not go out of his way to read it differently. The question remains, what kind of Justice of the Supreme Court would Judge Kavanaugh be? At this point, it is anyone’s guess.
Celia Kaechele, Summer Associate Class of 2018, contributed to this blog post.