U.S. Supreme Court nominee Brett Kavanaugh would likely continue Justice Anthony Kennedy ‘s legacy of siding with the conservative justices in labor, employment, and benefits cases, though he may diverge from his predecessor’s views on gay bias.
President Donald Trump named Kavanaugh, who is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, as his nominee to the Supreme Court in the East Room of the White House July 9. If confirmed, Kavanaugh would fill the seat of the court’s longtime swing vote, Kennedy, who announced his retirement at the end of the term. While Kennedy, 81, had a tendency to side with the court’s more conservative members in employment cases, he was an important socially progressive voice in cases of gay bias.
Kavanaugh’s views on workplace sexual orientation bias, which are lesser known, could be important should he sit on the court in the coming term. Two Supreme Court petitions arising from federal appeals courts in New York and Georgia pose questions about whether Title VII’s sex discrimination protections encompass bias against sexual orientation. Both petitions await the justices’ decision to grant or deny them.
Michael Foreman, director of the Civil Rights Appellate Clinic at Penn State Law, told Bloomberg Law he’s hopeful Kavanaugh’s time clerking for Kennedy may have influenced his own views on sexual orientation bias.
Kavanaugh’s voting history indicates he recognizes that discrimination exists, Foreman said. “I don’t think it’s a big jump to recognize the ugliness of sexual orientation discrimination.”
Others aren’t so sure.
Although Kavanaugh’s history with the questions is limited, there’s likely “no room for surprise” on his views on sexual orientation, given his conservative background, Mark W. Batten, a labor and employment lawyer at Proskauer Rose LLP in Boston, told Bloomberg Law.
Kavanaugh’s conservative philosophy may generally trend to the theme of no surprises in labor and employment cases, at least for employers.
“He’s a judge—soon to be justice—likely to reinforce most current trends before the court,” Batten said. Arbitration is one such trend.
Kavanaugh joined an opinion in 2013 limiting a retired worker’s access to court on his challenge to the termination of his disability benefits. The court held the pilot’s disability benefits action was subject to the Railway Labor Act’s arbitration requirements and couldn’t be heard in federal court. Kavanaugh’s views on arbitration suggest he’s “solidly in the camp of the majority of justices on the court.”
Those views would be in line with Kennedy, who sided with Justices Clarence Thomas, Neil Gorsuch, Samuel Alito, and Chief Justice John Roberts upholding mandatory arbitration agreements between employers and their workers this past term in Epic Systems Corp. v. Lewis.
“My initial impression on the nomination of Judge Kavanaugh is that he doesn’t change the course of employment law jurisprudence all that significantly,” Rae T. Vann, a lawyer with NT Lakis in Washington and general counsel of the Center for Workplace Compliance, told Bloomberg Law.
Traditional Joint Employer
He may even be willing to go with more traditional interpretations on issues like joint-employer liability, Vann said.
Kavanaugh’s views expressed in a partial concurrence from a 2017 case about CNN’s status as an employer of about technical services 100 workers indicates he’s open to establishing a more traditional test for determining a “joint-employer,” she said.
Joint-employer liability is a heavily debated and largely unresolved legal question, centering on how much control a business must exert over another business’ workers to be considered their joint employer under various labor and employment laws.