Gorsuch Would Bring Conservative Bona Fides to Labor Cases

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By Jay-Anne Casuga

U.S. Supreme Court nominee Neil Gorsuch brings a conservative legal view to the bench that could have an impact on big ticket labor and employment questions if he’s confirmed.

Gorsuch, who President Donald Trump tapped Jan. 31 to fill Antonin Scalia’s seat, is known for a strict adherence to the text of the law that reminds many of his predecessor. Gorsuch currently sits on the U.S. Court of Appeals for the Tenth Circuit.

He’s a solid conservative who’s “against second guessing employers’ business judgment,” Richard R. Meneghello, a management attorney with Fisher Phillips in Portland, Ore., told Bloomberg BNA.

But Gorsuch also has demonstrated an “independent streak” in employment law cases where he “doesn’t mind ruling against employers if it’s what he believes the law requires, regardless of his personal philosophy,” he said.

Gorsuch has been critical of undue judicial deference to administrative agencies, which could provide insight into how he might rule in some current and future labor and employment cases before the high court, attorneys told Bloomberg BNA.

Cases that involve agency interpretations of class action waivers in arbitration agreements and federal protections for transgender individuals, for example, are currently pending before the justices.

The high court also is expected to eventually take up the question of whether a federal ban on workplace sex discrimination extends to sexual orientation bias. It may also be asked to revisit a 4-4 split decision that came after Scalia’s death and kept in place a lower court’s finding that unions can force nonmember bargaining unit employees to pay “fair share” dues.

Possible Confirmation Battle Ahead

But Gorsuch may face a tough confirmation battle and a potential filibuster by Senate Democrats unhappy that Republicans didn’t allow a vote on Judge Merrick Garland, who former President Barack Obama nominated for the same seat last year. Gorsuch will need at least eight Democrats to cross the aisle and support the nomination to get the 60 votes required by Senate rules to overcome a filibuster.

Sen. Lamar Alexander (R-Tenn), chairman of the Senate Committee on Health, Education, Labor and Pensions, in a statement called on his colleagues to “fairly and carefully consider” the nomination of a “distinguished jurist.”

But Sen. Patty Murray (D-Wash.), ranking member of the HELP Committee, said she has “serious concerns about moving forward with a Supreme Court nomination at this time and will be joining with those pushing back against jamming this nominee through or rushing a confirmation in any way.”

Gorsuch Could Weigh In on ‘Blockbuster’ Cases

Depending on how the confirmation process proceeds, Gorsuch potentially could take part in cases currently before the Supreme Court, which adjourns in June.

“In a perfect world, for the Senate Republicans, he’ll be on the bench by April,” Meneghello said.

A speedy confirmation would give Gorsuch time to weigh in on some potential “blockbuster” workplace law cases, he said.

Those include three cases on whether arbitration agreements that prohibit employees from pursuing class or collective actions are unlawful under the National Labor Relations Act and unenforceable under the Federal Arbitration Act ( NLRB v. Murphy Oil USA, Inc.; Epic Systems Corp. v. Lewis; and Ernst & Young, LLP v. Morris).

Gorsuch, who has written strongly in favor of enforcing arbitration agreements in general, could have an “immediate impact” on the pending class action waiver cases, Steven W. Suflas, a management attorney with Ballard Spahr in Denver, told Bloomberg BNA.

The management community hopes that Gorsuch will join in affirming the Fifth Circuit, which rejected the National Labor Relations Board’s position that class action waiver agreements unlawfully interfere with employees’ NLRA rights to engage in concerted activity for their mutual aid or protection, Suflas said.

Another high profile case involves a Virginia school district’s challenge to an Education Department interpretation that “sex” in Title IX of the 1972 Education Act includes a student’s gender identity or transgender status ( Gloucester Cnty. Sch. Bd. v. G.G.).

The decision could have implications in the employment context, as Title VII of the 1964 Civil Rights Act may be interpreted consistently with Title IX. The Equal Employment Opportunity Commission, which enforces Title VII, has interpreted the law as providing workplace anti-discrimination protections based on gender identity within its sex bias prohibition.

Critical of Chevron Deference

Gorsuch has shown a judicial philosophy that’s “critical of undue judicial deference to administrative agencies,” especially the deference afforded to agencies under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., Ryan E. Mick, a management attorney with Dorsey & Whitney in Minneapolis, said.

Chevron deference is the highest level of deference. Under the principle, courts defer to an agency’s interpretations if a law’s language is ambiguous, the agency has congressional authority to issue regulations interpreting the law and the interpretation is reasonable.

“Gorsuch views the Chevron doctrine as aggregating too much judicial and legislative authority in executive agencies,” Mick told Bloomberg BNA.

Meneghello agreed. Gorsuch’s August 2016 opinion in Gutierrez-Brizuela v. Lynch, a non-employment immigration case against the federal government, took a “flamethrower to the Chevron deference standard,” he said.

“If I was cynical, I would say that he wrote that as an audition to Trump, knowing that Trump campaigned on a philosophy of eliminating business regulations,” he said.

This ideological skepticism toward deference potentially could be applied in the labor and employment context, the attorneys said.

For example, it could crop up against the NLRB in the current class action waiver cases before the Supreme Court, Mick said.

Deference in Potential Future Cases?

It also could play a role in cases that are expected eventually to reach the Supreme Court. These include Browning-Ferris Industries of California, Inc, a controversial case involving the NLRB’s joint employer standard that’s currently pending before the D.C. Circuit.

Browning-Ferris is a classic example of an administrative agency substantially changing the landscape of the law and saying we deserve deference,” Suflas said.

Another issue that could one day be heard by the high court is whether Title VII’s sex bias prohibition includes sexual orientation discrimination. The EEOC has taken the position that it does. The issue is pending before three federal appeals courts.

Gorsuch’s views on deference could be “very important” to the outcome of cases pertaining to NLRB cases, Labor Department rulemaking or EEOC interpretations that are making their way through the circuit courts right now, Suflas said.

Meneghello added that while this may prove beneficial to employers in the short term, it’s important to remember that “what’s good for the goose is good for the gander.”

Agencies under the control of a more conservative, pro-business administration may issue regulations that are “good” for employers, he said. But Gorsuch’s judicial philosophy on deference would make him hostile to those regulations too, Meneghello said.

In other words, Gorsuch’s views don’t necessarily give employers “a free pass,” he said.

Regarding the sexual orientation bias cases, their outcomes might not necessarily be determined just on deference.

Justice Scalia in Oncale v. Sundownerwrote that Title VII’s prohibition of discrimination “because of sex” included same-sex sexual harassment.

“Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” Scalia wrote.

Scalia was a “textual literalist,” Jennifer Pizer, senior counsel and law and policy director for Lambda Legal, an LGBT civil rights organization, told Bloomberg BNA.

It remains to be seen whether Gorsuch, who is “very much in the mold of Justice Scalia,” would also follow Scalia’s approach in the context of sexual orientation discrimination under Title VII, Pizer said.

Hobby Lobby, Religious Freedom

Gorsuch is perhaps best known for his concurring opinion in a Tenth Circuit decision finding that the Religious Freedom Restoration Act prevented the government from requiring a hobby store chain to cover workers’ contraception costs under the Affordable Care Act ( Hobby Lobby Stores, Inc. v. Sebelius).

Gorsuch said in that case that the ACA’s contraceptive mandate appeared to violate the company and its owners’ sincerely held religious beliefs. The Supreme Court later upheld the decision in a 5-4 ruling.

Hobby Lobby will be the “touchstone” that Senate Democrats use to “try to craft opposition to Gorsuch,” Meneghello said.

A Justice Gorsuch potentially could apply the same philosophy to employment law issues “well above and beyond the ACA,” such as in cases alleging sexual orientation or transgender discrimination, he said.

Suflas agreed.Based on Hobby Lobby, “it certainly looks like Gorsuch would give an expansive reading to RFRA,” he said.

RFRA has already appeared in other employment contexts. Last August, for example, a federal district court dismissed an EEOC discrimination lawsuit brought on behalf of a transgender funeral home worker ( EEOC v. R.G. & G.R. Harris Funeral Homes, Inc.).

The funeral home established under RFRA that enforcement of Title VII would substantially burden its ability to conduct business based on its owner’s sincerely held religious beliefs, the court held.

Given that Hobby Lobby was in the context of health insurance and birth control, however, it’s difficult to speculate on how Gorsuch would rule in a case like Harris, Pizer said.

Nevertheless, in the context of a case like Harris, where a worker’s nondiscrimination rights intersect with the assertion of religious rights by an employer, Gorsuch’s “very aggressive recognition of religious rights raises alarms for us,” Pizer said.

She added that Gorsuch’s concurrence in Hobby Lobby embraced a more expansive view of religious rights than in Justice Samuel Alito’s majority opinion in the case.

“Justice Alito’s opinion acknowledged that employers’ religious rights should not justify discrimination against workers, at least if it’s race discrimination in hiring,” Pizer said. “Judge Gorsuch did not include that limiting principle.”

Employer Friendly but ‘Not a Lap Dog.’

Over the past 10 years with the Tenth Circuit, Gorsuch has written about 15 precedential opinions, with 12 focusing on federal discrimination and retaliation claims.

Gorsuch’s opinions found in favor of employers, mostly on the merits but at least once on jurisdictional grounds, in eight of those 12 cases. He has written in favor of employees in two retaliation cases, one political bias case brought by a Republican-affiliated state employee and one pregnancy discrimination case.

Additionally, Gorsuch wrote three opinions upholding National Labor Relations Board rulings against both employers and unions.

Gorsuch has been involved in at least 20 decisions involving the Employee Retirement Income Security Act. He has usually sided with employers and plan administrators on claims that seek to recover denied or terminated benefits.

Gorsuch has had little experience ruling on worker safety cases but did vote in 2011 to overturn a Labor Department fine against a company whose failure to properly train a worker led to his death.

Gorsuch has written dissents in NLRB, whistle-blower and safety cases. In the safety case, he again expressed his skepticism toward administrative deference.

“I think there’s a bit of something for everybody when it comes to Gorsuch,” Meneghello said. He’s “not a lap dog for employers certainly.”

To contact the reporter on this story: Jay-Anne Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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