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What a Justice Gorsuch Might Mean for Employment Law

Owen H. Laird, Esq.

Today, the United States Senate will hold its second day of confirmation hearings for Supreme Court Nominee Neil M. Gorsuch. Judge Gorsuch currently serves on the United States Court of Appeals for the 10th Circuit. Although his confirmation hearings have been contentious, President Trump’s nominee is likely to be confirmed, as Republicans control enough votes in the Senate to do so. As the Supreme Court is presently split 4-4 between liberal and conservative Justices, Judge Gorsuch would likely represent the swing vote on the Court.

Judge Gorsuch has a long history of judicial decisions and legal writing to parse for clues as to what type of a Supreme Court Justice he might be. Putting aside some of the judicial issues that have received more attention recently—such as abortion, gay marriage, healthcare, use of force by the police—the incoming Supreme Court Justice will have a significant impact on the state of employment law in the U.S. in light of the Court’s current mixed political makeup.

Over the last 10 years, Judge Gorsuch has generally ruled in favor of employers in employment disputes: out of 14 published decisions, nine went in favor of the employer, three went to the employee, and two were split.  His concurrences and dissents also typically favor the employer.  While this type of analysis might show that Judge Gorsuch bears favorable views towards employers and corporations, it does not provide much insight as to how he might rule on specific issues; for that type of information, we must look at the substance of his decisions.

In a recent case, TransAm Trucking, Inc. v. Admin. Review Bd., Judge Gorsuch wrote a dissent criticizing the majority decision for what he saw as an overbroad interpretation of a statutory whistleblower protection.  Judge Gorsuch argued that the Court should apply a more limited interpretation of the statute, which would have resulted in the dismissal of the whistleblowing claim.  This is not a good sign for employees who hope to see an expansion of protections for workers.

Over the past several years, many of the increased protections for workers have come from judges or administrative bodies interpreting extant statutes more liberally. For example, one of the most significant recent changes in federal anti-discrimination law was the EEOC’s decision to extend the ambit of Title VII to include a prohibition against discrimination on the basis of sexual orientation. Several lower courts have already addressed the EEOC’s interpretive expansion, with many judges declining to adopt the EEOC’s broader stance. Judge Gorsuch’s position in TransAm Trucking—that a statute defining specific employee protections should be read narrowly—suggests that he would also reject the EEOC’s broader interpretation of Title VII, potentially rolling back the already limited federal protections against sexual orientation discrimination in the workplace.

In fact, Judge Gorsuch appears to believe that administrative agencies like the EEOC deserve less respect from the judicial branch in general. In Gutierrez-Brizuela v. Lynch, Judge Gorsuch authored a concurring opinion in which he advocated for abandoning deference to the Chevron standard, which limits the extent to which courts can second-guess administrative agencies’ decisions to issue regulations. This, too, suggests that Judge Gorsuch would not be receptive to broad or innovative action by the EEOC, the Department of Labor, the NLRB, or other agencies that are tasked with implementing the laws that protect workers.

If your employer has violated your rights under federal, state, or city employment laws, contact The Harman Firm, LLP.

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