How Would SCOTUS Nominee Treat Employers?

Brett Kavanaugh has a history of ruling in favor of employers, but not always.
By: | July 10, 2018 • 3 min read
SCOTUS kavanaugh

Yesterday’s announcement by President Trump that he is nominating Brett Kavanaugh for the vacant seat on the U.S. Supreme Court was greeted—predictably—with cheers from the right and jeers from the left. But how should employers view the nomination?

According to a Fisher Phillips analysis of Kavanaugh’s background and career, employers are likely to embrace the nomination based on his previous rulings. The law firm reviewed a number of employment-law decisions issued by Kavanaugh, “and in virtually every published opinion, he has ruled in favor of the employer.”

Among the decisions cited by that analysis:

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“In one of his earliest decisions, he ruled in favor of the Bureau of Prisons after a worker filed an action alleging that his non-selection for a promotion was the result of racial discrimination in violation of Title VII. The employee argued that the employer made its hiring decision based on a factor not expressly listed in the job description, which should have led to a finding of discrimination. Kavanaugh wasn’t having it. His 2007 opinion concludes: ‘The fact that an employer based its ultimate hiring decision on one or more specific factors encompassed within a broader and more general job description does not itself raise an inference of discrimination sufficient to overcome summary judgment.’ ”

In 2008, he also ruled in favor of the Bureau of Indian Affairs in a case alleging race, religion, age and disability discrimination: “He concluded the employee suffered no adverse employment action, the employer had legitimate reasons for its performance-based decisions, and there was no hostile work environment at the organization.”

In 2010, he upheld the dismissal of another disability-discrimination claim, concluding that a hospital did not deny an employee’s request for reasonable accommodation. The next year, he ruled in favor of an employer and upheld the dismissal of racial- and gender-discrimination claims brought against an organization and its CEO. Kavanaugh found that the CEO’s decision to fire the employee due to incompatible working styles was sufficient justification, especially given the HR manager’s documented history of complaints about her performance.

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In its exhaustive analysis, Fisher Phillips notes that Kavanaugh “has proven himself, however, to not be afraid to rule in favor of workers in the more egregious cases.”

In a 2013 case, for example, where an employee alleged he had had been called a racial slur by a supervisor, Kavanaugh “had no problem finding that single verbal incident of such severity could sustain a hostile work environment claim. And in 2016, he agreed that a worker could bring a valid Title VII claim when an employer rejects a lateral transfer application for reasons based on race or gender.”

While Kavanaugh’s confirmation is anything but assured, employers should feel confident the president has selected a reliably pro-business judge to fill the seat left vacant by Justice Anthony Kennedy’s retirement.

To read the entire piece, click here.

Web Editor Michael J. O’Brien has been with HRE for more than a decade and holds a degree in economics from Boston College. He can be reached at [email protected]

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