Gorsuch Would Bring Conservative Bent to Labor Cases

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By Chris Opfer and Jay-Anne B. Casuga

Judge Neil Gorsuch, who is said to be on President Donald Trump’s short list for the U.S. Supreme Court, is a reliable conservative who could have a big say on some hot-button labor and employment questions.

Gorsuch is reportedly a top candidate for former Justice Antonin Scalia’s seat, which has been unfilled since Scalia died nearly a year ago. Gorsuch currently sits on the U.S. Court of Appeals for the Tenth Circuit, where he’s developed a reputation for writing with flare, defending religious freedom and taking a strict, text-focused view of the Constitution.

“Ideologically, he’s really cut from a similar cloth as Scalia,” Paul Collins, a legal studies professor at the University of Massachusetts Amherst, told Bloomberg BNA. “He’s known to be pretty conservative and considers himself to be an originalist in the mode of Scalia.”

The high court is expected to eventually take up the question of whether a federal ban on sex discrimination in employment 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.

Former President George W. Bush nominated Gorsuch to the Tenth Circuit in 2006, and the Senate confirmed him for the seat in a voice vote. Whoever Trump taps for the Supreme Court will need at least eight Democrats to cross the aisle and support the nomination to avoid a filibuster under current Senate rules.

Judges Bill Pryor of the Eleventh Circuit and Thomas Hardiman of the Third Circuit were also on a list of 11 possible Supreme Court nominees that Trump unveiled during his White House run.

Some Labor Experience

Gorsuch is perhaps best known for his concurring opinion in a decision finding that the government couldn’t force a hobby store chain to cover workers’ contraception costs under the Affordable Care Act ( Hobby Lobby Stores, Inc. v. Sebelius, 121 FEP Cases 12 (10th Cir. 2013)). Gorsuch said in that case that the ACA’s contraceptive mandate appeared to violate the company and its owners’ religious rights. The Supreme Court later upheld the decision in a 5-4 ruling.

“All of us face the problem of complicity,” Gorsuch wrote. “All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.”

Over the past 10 years with the Tenth Circuit, Gorsuch has written at least 15 precedential labor and employment rulings. Twelve of those rulings involved federal race, sex, age, disability and political 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 the 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 wrote dissents in at least two precedential Tenth Circuit decisions, one pertaining to the NLRB and the other focusing on a federal whistle-blower law.

One case, NLRB v. Community Health Services Inc., focused on whether the NLRB could disregard a worker’s interim earnings when calculating back pay awards in cases in which an employer is found to have unlawfully cut work hours.

The majority deferred to the board, which argued that deducting interim earnings in such cases, which don’t involve a complete job loss, could be harmful to production and employment. The board also contended that employees who take on extra work because of an unfair labor practice can face additional, perhaps unquantifiable hardships that nevertheless justify compensation.

Gorsuch wrote that he was unpersuaded by the NLRB’s arguments. He also questioned whether the board’s order stemmed “from a frustration with the current statutory limits on its remedial powers.”

Close Reader

Gorsuch last year was on the dissenting side of a 2-1 decision in which the Tenth Circuit said a Missouri shipping company wrongly fired a driver for abandoning his trailer. The court said the driver engaged in activity protected by the Surface Transportation Assistance Act when he refused to drag a trailer with frozen brakes down the highway and to wait hours in an unheated truck cabin at subzero temperatures for a repair person.

Gorsuch disagreed, saying that the law only protects whistle-blowers who actually refuse to drive because of safety concerns. Gorsuch said the driver continued to operate his vehicle and was fired for not doing it the way he’d been instructed by a supervisor.

The dissenting opinion is an example of the judge’s strict adherence to the text of laws and regulations. “The law before us protects only employees who refuse to operate vehicles, period,” Gorsuch wrote.

“What we all thought was that he applied the facts to the law as written,” Brad Thoenen, an attorney with Seigfreid Bingham in Kansas City, Mo., who represented TransAm Trucking in the case, told Bloomberg BNA. “We didn’t consider that as conservative or liberal or anything.”

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

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

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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