United States: Brett Kavanaugh's Supreme Court Job Interview: An Employer's Perspective

The Senate is gearing up to consider President Trump's nomination of Judge Brett Kavanaugh as an Associate Justice of the Supreme Court to replace Justice Kennedy. While employment law is not likely to be the center of his confirmation hearings, many employers will be watching to see how Judge Kavanaugh's appointment may impact employment cases that come before the Supreme Court. A review of Judge Kavanaugh's employment law decisions during his time on the U.S. Court of Appeals for the D.C. Circuit suggests that although he sometimes sides with employees, he would be an employer-friendly addition to the Supreme Court.

Judge Kavanaugh's Employment Record is Mixed on Discrimination and Harassment Issues

As illustrated by the below cases, Judge Kavanaugh is generally employer-friendly in discrimination, harassment and retaliation cases.

  • No Retaliation in OSHA. In Robert Lee Johnson v. Interstate Mgmt. Co. LLC, 849 F.3d 1093 (D.C. Cir. 2017), Judge Kavanaugh wrote the opinion affirming the district court's dismissal of an employee's retaliation claim. The employee was fired from his job as a hotel cook due to unsanitary kitchen practices. The employee alleged he was actually terminated in retaliation for complaining to the Occupational Safety and Health Administration ("OSHA") about allegedly unsafe workplace conditions at the hotel. Affirming the dismissal, Judge Kavanaugh turned to the text of the statute and reasoned that OSHA does not expressly grant employees a private cause of action for retaliation claims.
  • Discrimination Overseas. In Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012), Judge Kavanaugh wrote a textualist dissent in a case involving a State Department employee who alleged he was wrongfully terminated because he had turned 65 years old, in violation of the Age Discrimination in Employment Act ("ADEA"). The majority, authored by Judge Merrick Garland, held that the ADEA applied to the State Department. Judge Kavanaugh's dissent stressed that federal law expressly allows the State Department to contract with American workers in foreign locations without regard to statutory provisions relating to employment contracts in the United States, including the ADEA. In a footnote, Judge Kavanaugh questioned whether the ADEA has extraterritorial application at all, noting that it may not given the longstanding presumption against extraterritorial application of statutes.
  • McDonnell Douglas Burden Shifting. In Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), Judge Kavanaugh authored the opinion for a unanimous three-judge panel involving an employee who was demoted following claims of sexual harassment and subsequently filed a discrimination claim. The panel affirmed the district court's finding that the employee failed to make out a prima facie case of discrimination. Judge Kavanaugh described the prima facie case prong of the McDonnell Douglas burden-shifting framework as a largely "unnecessary sideshow" and provided a simplified approach for disparate-treatment claims: if the employer has a legitimate non-discriminatory reason for an adverse employment action, courts should not determine whether the employee has made a prima facie case and instead decide only whether the employee has produced sufficient evidence to show that the employer's proffered reason is mere pretext. In response to the plaintiff's claim that the alleged reason for the employer's reason for the demotion never occurred, Judge Kavanaugh wrote that this was irrelevant because the question for the court is "whether the employer honestly and reasonably believed that the underlying sexual harassment occurred."

In two high-profile decisions involving allegations of racial discrimination, Judge Kavanaugh has sided with employees' ability to stay in court.

  • Discriminatory Transfers. In Ortiz-Diaz v. U.S. Dep't of Hous. & Urban Dev., 867 F.3d 70 (D.C. Cir. 2017), Judge Kavanaugh authored an employee-friendly concurring opinion in a case involving discrimination in voluntary transfers. The D.C. Circuit panel ultimately held that discriminatory transfers are sometimes actionable. Judge Kavanaugh urged the court to push further to adopt a more expansive but unambiguous rule: "All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII."
  • Racial Harassment. In Ayissi-Etoh v. Fannie Mae et al., 712 F.3d 572 (D.C. Cir. 2013), Judge Kavanaugh sided with the employee in his discrimination case. In a per curium opinion, the D.C. Circuit reversed the lower court's award of summary judgment in favor of Fannie Mae over claims that it discriminated against, harassed, and retaliated against an African-American employee. The employee's supervisor allegedly used a racial slur, denied a salary increase when he was promoted, and fired him after he filed a discrimination complaint. In his concurring opinion, Judge Kavanaugh wrote that being called the N-word by a supervisor, even one time, is sufficient to establish a hostile work environment. He added that there is no other word in the English language that so powerfully calls to mind our country's long struggle to overcome racism and discrimination against African-Americans.

Judge Kavanaugh Generally Sides with Employers on Joint and Successor Employer Issues

Judge Kavanaugh's recent decisions regarding joint and successive employer issues have favored employers.

  • No Joint Employer Relationship. In Island Architectural Woodwork, Inc. v. NLRB, 892 F.3d 362 (D.C. Cir. 2018), Judge Kavanaugh dissented in favor of the employer, finding that the two small businesses at issue were not joint-employers. The majority opinion enforced an NLRB order holding one of the businesses was an alter ego of the second business, which had a collective bargaining agreement. Judge Kavanaugh found the Board's analysis unpersuasive and reasoned that the entities were not joint-employers because they did not have common ownership, common management, or common employees.
  • No Successor Employer Relationship. Dissenting in NLRB v. CNN Am., Inc., 865 F.3d 740 (D.C. Cir. 2017), Judge Kavanaugh criticized the NLRB's analysis of both the joint-employer and successor-employer issues when it found that CNN had violated the National Labor Relations Act ("NLRA"). The majority opinion struck down the NLRB's finding that CNN America Inc. was a joint-employer to union camera workers who were fired in 2003 and made to reapply for similar nonunion jobs, but upheld the NLRB's finding that CNN America Inc. was a successor employer in violation of the NLRA. Judge Kavanaugh agreed that CNN was not a joint employer, but dissented with respect to the successor employer finding because the NLRB had not conducted the requisite analysis to make this determination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Orrick’s Global Japan Practice is hosting a series of “Orrick Library” seminars to explore legal issues in various fields in Japan as well as the United States, Asia and Europe

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10 Oct 2018, Conference, Florida, United States
Julie Totten is Program Chair of this year’s conference, Lynne Hermle is speaking on women in the courtroom, boardroom, and c-suite, and Erin Connell is speaking on pay equity and pay transparency.

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