Supreme Court nominee Brett Kavanaugh leaves the Senate Judiciary Committee hearing room during a break on the second day of his confirmation hearing, on Capitol Hill in Washington, Wednesday, Sept. 5, 2018.
Photo: AP Photo/J. Scott Applewhite
Photo: AP Photo/J. Scott Applewhite

Opinion: Kavanaugh likely to be pro-employer jurist

As confirmation hearings approach for Judge Brett Kavanaugh, picked by President Donald Trump to fill the vacant seat on the Supreme Court bench, Georgia companies may be wondering what they might expect in terms of workplace law cases if he is confirmed by the Senate.

While one is never certain how a Supreme Court justice will vote until he or she is seated and hearing arguments, Kavanaugh will probably join the pro-business bloc of justices and create a strong, impenetrable five-justice majority of conservative jurists.

It is also likely Justice Kavanaugh will be kind to Georgia companies, siding with employers in typical workplace law cases. A review of a number of employment law decisions written by Kavanaugh reveals that, in virtually every published opinion, he ruled in favor of the employer.

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 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 was not persuaded. 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 [a legal process that ends a case without a trial].”

In a 2008 case, Kavanaugh sided with the District of Columbia public school system in a disability discrimination case brought by a hearing-impaired applicant. He concluded the employer’s proffered reason for not hiring the applicant withstood scrutiny, and the interviewer was permitted under the Americans with Disabilities Act (ADA) to ask the applicant how he communicated in workplaces where no one knew sign language.

Later in 2008, Kavanaugh denied a doctoral candidate’s appeal following a jury trial loss in another disability discrimination case. Although that candidate raised several technical issues that might have otherwise warranted a retrial, Kavanaugh sided with the employer and rejected the appeal.

At least twice in his tenure on the D.C. Circuit, Kavanaugh had the opportunity to rule in favor of workers in their employment law claims but seemed to go the extra mile to issue a ruling in favor of the employer. In 2008, he ruled in an employer’s favor in a high-profile case that could have easily gone the other way. In another case, a former employee sued the Small Business Administration (SBA) and alleged it discriminated against him because of his race and retaliated against him for his complaints. The parties reached a settlement agreement, but the former employee soon alleged the SBA breached the agreement by revealing information about him to a subsequent prospective employer; he sought to have the underlying claims reinstated and tried in front of a jury. In 2011, Kavanaugh dismissed his claims and concluded any breach of the settlement agreement was not material.

On the other hand, Kavanaugh has proven that he is not afraid to rule in favor of workers in egregious cases. For example, in a 2013 case where an employee alleged he had been called a racial epithet by a supervisor, Kavanaugh had no problem finding that a 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.

During his time on the D.C. bench, Kavanaugh also had ample opportunity to weigh in on traditional labor matters. While most of his decisions have fallen in favor of employers, he has also demonstrated an independent streak and sided with unions on occasion.

He is also likely to take a hard line on immigration. Soon after joining the bench, he was faced with a case involving whether undocumented workers could be considered “employees” who can help to form a union under the National Labor Relations Act (NLRA). Kavanaugh strongly disagreed: “I would hold that an illegal immigrant worker is not an ‘employee’ under the NLRA, for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States.”

In 2014, the D.C. Circuit ruled employers can properly sponsor immigrants for “specialized knowledge” visas if those workers have a particular “cultural knowledge.” Kavanaugh also dissented from this decision, penning an opinion that showed strong support for American workers. He wrote in the majority opinion: “Mere economic expediency does not authorize an employer to displace American workers for foreign workers.”

Before Georgia companies celebrate, however, Kavanaugh must first get confirmed. If he does, the relatively young jurist (age 53) could easily enjoy 20 to 30 years on the Supreme Court bench, taking part in dozens of cases that shape our workplace laws.

D. Albert “Bert” Brannen is managing partner of the Atlanta office of national labor and employment law firm Fisher Phillips.

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