When it became clear on July 9, 2018, that Judge Brett M. Kavanaugh (53), of the United States Court of Appeals for the District of Columbia Circuit, was to be nominated to fill the vacancy on the United States Supreme Court left by retiring Justice Anthony Kennedy, the immediate question for many employers -- and those of us who provide legal advice to employers -- was "how will a Kavanaugh court affect my workplace?"
While Justice Kennedy has the reputation of being the High Court's "swing vote," particularly with regard to social concerns, his employment decisions have been, for the most part, pro-employer. This term alone, Justice Kennedy joined the decision in Janus v. AFSCME Council 31, which held that government workers who choose not to join unions may not be forced to help pay for collective bargaining, because it violates their free speech rights. Kennedy also agreed with the Epic Systems Corp. v. Lewis decision upholding the enforceability of arbitration agreements containing class and collective action waivers of wage and hour disputes. And, in 2011, Justice Kennedy sided with the majority of the court in Walmart Stores Inc. v. Dukes, a decision that narrowed the definition of the commonality requirement of class actions.
Judge Kavanaugh's decisions have similarly favored-employers. Thus, his confirmation will maintain the Court's current pro-employer leanings. In Midwest Division-MMC, LLC v. National Labor Relations Board (2017), the D.C. Circuit refused to enforce a National Labor Relations Board (NLRB) decision sustaining the right of union employees to have a representative present during noncompulsory job performance peer-reviews. In a separate concurrence, Judge Kavanaugh emphasized that members have no right to representation in peer reviews because such reviews are neither investigatory nor likely to result in discipline. Judge Kavanaugh also stated that the confidentiality of the peer-review process was of essential importance.
Judge Kavanaugh's decisions in discrimination cases under Title VII, however, have been somewhat mixed. For instance, in Adeyemi v. District of Columbia (2008), Judge Kavanaugh dismissed the plaintiff's claim that he was not hired because he was blind, in violation of the American's with Disabilities Act (ADA). Judge Kavanaugh explained that the central inquiry in a discrimination case is whether the employer's stated nondiscriminatory reason for its employment decision is false. Where the plaintiff fails to demonstrate the falsehood of the stated reason, the employment decision must stand.
However, Judge Kavanaugh's concurrence in Ayissi-Etoh v. Fannie Mae (2013) can be read as advocating for a lower burden to be placed on plaintiffs in asserting hostile workplace claims. In Ayissi-Etoh, the plaintiff alleged he was subjected to a racially hostile work environment when his manager called him a repugnant racial slur. In concurring with the majority decision dismissing the plaintiff's claim, Judge Kavanaugh, nevertheless, contended that in some cases the utterance of a single racial slur, "might well have been sufficient to establish a hostile work environment."
Accordingly, one of the litmus tests for a Kavanaugh court will be to examine how he votes where the lines between emerging social concerns and legal principles of employment law intersect. Justice Kennedy is routinely cited for incrementally expanding 14th Amendment protections to the LGBTQ community over the course of his 30 years on the Supreme Court. How Judge Kavanaugh will vote on similar issues, if confirmed, is of the utmost interest.
Next Steps Judge Kavanuagh's nomination must be confirmed by a simple majority of the Senate. Senate Republicans hold a narrow majority (51-49) and, therefore, need every vote to push through the confirmation.
• For more information on labor and employment law, contact Heather Adams, Paul Bittner or another member of our Labor, employment and immigration group. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.