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On the Legal Front: Considering Supreme Court Justice Brett Kavanaugh’s Record on Employment Law

Arturia Melson-Silimon and Nathan T. Carter, University of Georgia

Prior to Justice Neil Gorsuch’s confirmation, Art Gutman wrote a piece for On the Legal Front (Gutman, 2017) dedicated to summarizing his law record as a 10th Circuit Court Judge. In conclusion, Gutman suggested that the makeup of the court would remain relatively stable with Justice Anthony Kennedy serving as the “swing vote.” Indeed, with Justice Kennedy’s recent retirement comes major implications concerning future dynamics and composition of the Court.

On October 6, 2018, the Senate confirmed Judge Brett Kavanaugh as the 114th Supreme Court Justice. Prior to his confirmation hearing, there had been considerable media attention dedicated to the potential implications of the nominee’s confirmation for U.S. policy concerning abortion and gay marriage rights. As the confirmation hearings progressed, however, media coverage focused in on sexual harassment allegations made against the nominee. Less attention has been given to Judge Kavanaugh’s employment law record while serving as a Circuit Judge for the District of Columbia Circuit. Prior to his recent confirmation, Judge Kavanaugh had served as Circuit Judge for D.C. since 2006. For the purpose of this column, our focus will be standard employment cases (e.g., CRA Title VII, ADA, ADEA, retaliation, etc.) we believe to be more relevant for the SIOP community. We begin by briefly discussing and analyzing each case and conclude with a discussion of his past decisions’ relevance to the future of employment law in the highest court in the United States.

Cases Favorable to Defendants

  1. Johnson v. Interstate Management Co., LLC (2017) [849 F.3d 1093]

This case involved a retaliation claim. After being fired from his job as a hotel cook, the plaintiff (Johnson) claimed his termination was an act of retaliation due to his previous complaints to (a) the Occupational Safety Health Administration (OSHA) concerning allegations of unsafe workplace conditions and (b) the Equal Employment Opportunity Commission concerning allegations of employment discrimination. Interstate Management argued that Johnson was terminated due to unsanitary cleaning and cooking practices.  The Circuit Court affirmed the District Court’s decision for summary judgment in favor of the employer. Judge Kavanaugh signed in with the majority, due to (a) the defendant providing a number of reasons for the termination decision that were both nonretaliatory and nondiscriminatory and; (b) the fact that OSHA does not provide a right of action for retaliation claims.

  1. Rattigan v. Holder (2015) [780 F.3d 413]

This case involves a retaliation claim. The plaintiff worked at the U.S. Embassy in Saudi Arabia as the FBI’s primary liaison to the Saudi intelligence service. Rattigan filed charges to the Equal Employment Opportunity Office for alleged discrimination on the basis of race and national origin. Rattigan claimed that a later investigation conducted by the Security Division was an act of unlawful retaliation. The plaintiff filed suit under Title VII of the Civil Rights Act of 1964.  The Courts narrowed the scope in which Rattigan’s claim could survive under Department of the Navy v. Egan (1988). Specifically, the plaintiff’s claim could survive if he could establish “known falsehood”—that the defendant acted with a retaliatory or discriminatory motive by reporting or referring to information they knew to be false. Because Rattigan failed to overcome that hurdle, the Circuit Court affirmed the District Court’s decision for summary judgment. In Rattigan II, Judge Kavanaugh provided a dissenting opinion explaining disagreement concerning the majority’s view that some decisions made for agency security are “judicially reviewable.”

  1. Foote v. Moniz (2014) [751 F.3d 656]

This case involves a discrimination claim. For the protection of natural security, the Department of Energy’s Human Reliability Program evaluates employment applications carefully for positions involving access to nuclear devices, materials, or facilities. Positions following under this category require certification involving:  psychological evaluation, drug tests, completing an annual SF-86 Questionnaire for National Security Positions, and a counterintelligence evaluation. The plaintiff was denied certification and was unable to obtain a desired position within the Department. Foote claims that the Department psychologist’s recommendation against certification was due to racial discrimination. The Circuit Court ruled in favor of the defendant due to (a) decisions for certification being consistent with interests of national security and; and (b) the Department’s psychologist was authorized and trained to make a judgement about Foote’s suitability for certification. Within their rationale, the Court cited Department of the Navy v Egan (1988). 

  1. Miller v. Clinton (2012) [687 F.3d 1332]

This case involves an age discrimination claim. The plaintiff was an employee of the Department of State and served as a safety inspector at the U.S. embassy in Paris, France.  Miller was dismissed from his position upon his sixty-fifth birthday. Miller claimed that his forced retirement was in violation of the federal employment provisions of the ADEA. However, Miller was hired under the Basic Authorities Act which exempted him from protections under the ADEA. Further, Section 2 (c) of the Basic Authorities Act authorized the State Department to mandate retirement at age 65. Therefore, the Circuit Court affirmed the District Court’s decision to dismiss the case.

  1. Vatel v. Alliance of Automobile Manufacturers (2011) [ 627 F.3d 1245]

This case involves a race and gender discrimination claim. The plaintiff worked as the assistant to the president and CEO of the Alliance of Automobile Manufacturers. Vatel claims she faced termination due to racial and age discrimination. The defendant argued that termination was due to unsatisfactory performance and incompatible work styles.  The Circuit Court affirmed the District Court’s decision for summary judgement due to (a) the defendant providing nondiscriminatory reasons for the plaintiff’s demotion and (b) the plaintiff failing to put forward sufficient evidence to suggest the termination was based on discriminatory reason. 

  1. Brady v. Office of the Sergeant at Arms (2008) [520 F.3d 490]

This case involves a Title VII racial discrimination claim. The plaintiff worked as an assistant shift supervisor in House Garages and Parking Security, an entity within the Office of the Sergeant at Arms of the House of Representatives. Brady was later demoted to a lower position and argues that this demotion was discriminatory and in violation of Title VII of the Civil Rights Act.  The defendant argued that Brady’s demotion was due to the employee’s violation of the office’s sexual harassment policy. The Circuit Court affirmed the District Court’s decision for summary judgement due to (a) the defendant providing non-discriminatory reasons for the plaintiff’s demotion and (b) Brady failing to put forward sufficient evidence to suggest the demotion was based on discriminatory reason. 

  1. Baloch v. Dirk Kempthorne (2008) [550 F.3d 1191]

This case involves age discrimination and retaliation, and hostile work environment claims. While working for the Department of the Interior, the plaintiff served as the sole Water Rights specialist for an extended period of time. Baloch argued that when a second water specialist was finally hired, he lost many of his previous duties. Further, the plaintiff argued that this shift in duties were due to racial discrimination.  The plaintiff also claimed that his supervisor retaliated against him for his discrimination complaints in the following ways: imposed sick leave restrictions, proposed suspension(s), issued a letter of counseling, a letter of reprimand, and unsatisfactory performance review. The Circuit Court affirmed the District Court’s decision for summary judgement due to Baloch’s (a) failing to show that he suffered an adverse action (which is needed for both discrimination and retaliation claims); and (b) failing to present sufficient evidence to support a hostile work environment.

  1. Adeyemi v. District of Columbia (2008) [525 F.3d 1222]

This case involves an ADA violation claim. The plaintiff, Adeyemi, applied for an information technology position in the D.C. Public School System and was denied hire. Adeyemi claimed that he faced discrimination due a disability. The defendant argued that two more-qualified candidates were selected. The Circuit Court affirmed the District Court’s decision for summary judgement due to Adeyemi failing to provide sufficient evidence for discrimination.

  1. Jackson v. Gonzales (2007) [496 F.3d 703]

This case involves a racial discrimination claim. Jackson worked as a GS-13 employee in the Bureau of Prison. Jackson applied for a GS-14 open research analyst position. When the position was given to a Caucasian woman, Jackson sued the Bureau for alleged racial discrimination in violation of Title VII. The defendant argued that a more-qualified candidate was selected. Although Judge Rogers provided a dissenting opinion, the Circuit Court affirmed the District Court’s decision for summary judgement since the defendant’s explanation did not suggest pretext for racial discrimination.

Cases Favorable to Plaintiffs

  1. Ayissi-Etoh v. Fannie Mae (2013) [712 F.3d 572]

This case involved a claim of discrimination, hostile work environment, and retaliation. Ayissi-Etoh claimed that after receiving a promotion, he was denied a salary increase due to discriminatory reasons. On a separate occasion, a racial slur was allegedly directed at the plaintiff by the organization’s vice president.  Further, the plaintiff claimed that after filing a discrimination complaint with the Equal Employment Opportunity Commission, his supervisor gave the ultimatum: either drop the racial discrimination claim or face termination. The Circuit Court sided with the plaintiff, thus reversing the lower court’s summary judgement decision for race discrimination, hostile work environment, and retaliation claims. In addition, Judge Kavanaugh offered a concurring opinion and additional commentary surrounding the hostile work environment claim. Although the defendant, Fannie Mae, argued that one use of a directed racial slur would be insufficient in establishing a hostile work environment, Judge Kavanaugh found flaws in this argument, stating that one use of the slur directed at the plaintiff would be enough to establish a hostile work environment.

Conclusion

These are not the only cases that may be worth reviewing, but these were the only matters involving traditional employment discrimination claims. Please note there were two cases in which employees sued under the Administrative Procedure Act on grounds of discrimination against citizens, but they were both dismissed because plaintiffs were federal employees and therefore suits must be pursued through the administrative and judicial review system set up by the Civil Service Reform Act. See Nyunt v. Chairman, Broadcasting Bd. of Governors, 589 F.3d 445 (D.C. Cir. 2009) and Grosdidier v. Chairman, Broadcasting Bd. of Gov., 560 F.3d 495 (D.C. Cir. 2009).

Due to the current makeup of the court in lieu of Justice Kennedy’s retirement, it can be reasonably assumed that future direction will shift. During Justice Kennedy’s tenure on the Supreme Court he became the Court’s “swing vote” (Gutman, 2017).  This is not to say the justice did not remain consistent as majority of his decisions in the past term surrounding labor laws were mainly in line with conservative justices. See Epic Systems v. Lewis (2018) and Janus v. American Federation (2018). However, Kennedy became known for his impact on social issues surrounding equal rights. Further, the justice broke with conservatives on issues such as gay marriage and gay rights, and the current split in federal appeals courts regarding the status of sexual orientation as a protected class has been attributed to Kennedy’s rulings on such issues. It will be interesting to see how future decisions pan out given the proposed new dynamic of the Court.

Our review of Kavanaugh’s record as 10th Circuit judge suggests that the majority of employment cases were favorable to employers. Specifically, only one case was favorable to the plaintiff. This is not surprising, as it is common for decisions to err on the side of the employer when EEO cases are up for appeal. Nevertheless, there are few conclusions we can draw from Kavanaugh’s record.

First, Kavanaugh’s rulings remain yet very cut and dry with the literal interpretation of the law and precedent set by previous rulings. In Rattigan II, for example, he wrote a dissenting opinion concerning the majority’s opinion that some security clearance decisions could still be judicially reviewable explaining, “In my respectful view, the majority opinion’s conclusion cannot be squared with the Supreme Court’s decision in Department of the Navy v. Egan” (p. 989). Although it is unlikely that many cases will arise to involve this exact context, it is appropriate to expect Kavanaugh to enter the Supreme Court with the same exacting legal philosophy. Therefore, it is important to think about how such trends in interpretation may pan out in other employment cases.

Second, Kavanaugh’s biggest impact is likely to fall on the issue of whether discrimination surrounding LGBT identity is protected by the Civil Rights Act. For example, given Kavanaugh’s previous rationales in other discrimination cases, we can expect Kavanaugh would approach a sexual orientation discrimination case with a literal interpretation; hence, the leap from the protected class of “sex” to “sexual orientation” would be unlikely. With petitions bubbling from the lower courts surrounding whether sexual orientation is encompassed under Title VII (see Bostock v. Clayton County, 2018), it seems likely that Kavanaugh will be involved in such a case (or cases).

In conclusion, we believe we can expect to see Kavanaugh’s legal philosophy or literal legal interpretation translated into future Supreme Court battles. Importantly, we believe I-O psychologists would be well-advised to pay close attention to the Supreme Court as its shifts in membership are crucial to the conduct of our profession’s practice and to the rights of employers and employees alike. 

 

Kavanaugh Cases Cited

Adeyemi v. District of Columbia, 525 F.3d 1222 (D.C. Cir. 2008).

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013).

Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008).

Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008). 

Foote v. Moniz, 751 F.3d 656 (D.C. Cir. 2014).

Grosdidier v. Chairman, Broadcasting Bd. of Gov., 560 F.3d 495 (D.C. Cir. 2009).

Jackson v. Gonzales, 496 F.3d 703 (D.C. Cir. 2007).

Johnson v. Interstate Management Company, LLC, 849 F.3d 1093 (D.C. Cir. 2017).

Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012).

Nyunt v. Chairman, Broadcasting Bd. of Governors, 589 F.3d 445 (D.C. Cir. 2009).

Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012).

Vatel v. Alliance of Automobile Manufacturers, No. 10-7013 (D.C. Cir. Jan. 14, 2011).

 

Other Cases Cited

BNSF Railway Co. v. Loos, No. 17-1042 (U.S. May 14, 2018).

Bostock v. Clayton County Board of Commissioners, No. 17-13801 (11th Cir. July 18, 2018).

Department of Navy v. Egan, 484 U.S. 518, 108 S. Ct. 818, 98 L. Ed. 2d 918 (1988).

Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 584 U.S., 200 L. Ed. 2d 889 (2018).

 Evans v. Georgia Regional Hosp., 850 F.3d 1248 (11th Cir. 2017).

Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466 (U.S. June 27, 2018).

Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003).

Murray v. Gilmore, 406 F.3d 708 (D.C. Cir. 2005).

New Prime, Inc. v. Oliveira, 138 S. Ct. 1164 (U.S. 2018).

Obergefell v. Hodges, 2015 W.L. 213646 (U.S. 2015).

Rattigan v. Holder, 643 F.3d 975 (D.C. Cir. 2011).

Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012).

Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).

US v. Windsor, 133 S. Ct. 2675, 570 U.S. 12, 186 L. Ed. 2d 808 (2013).

Zarda v. Altitude Exp., 855 F.3d 76 (2d Cir. 2017).

 

Additional References

Age Discrimination in Employment Act, 29 U.S.C. § 621 (1967)

Gutman, A. (2017). Considering supreme court nominee Neil Gorsuch's record on employment law. The Industrial-Organizational Psychologist,54(4).  Retrieved from http://www.siop.org/tip/april17/olf.aspx

Gutman, A., Koppes, L. L., & Vodanovich, S. J. (2011). EEO law and personnel practices, 3rd ed. New York, NY: Psychology Press.  

 

About Arturia Melson-Silimon

Arturia Melson-Silimon is a doctoral student at the University of Georgia.  Arturia is interested in researching areas related to Equal Employment Opportunity (EEO) law, such as issues in selection concerning sub-group differences, employment discrimination, and workplace sexual harassment. Specifically, Arturia is interested in researching potential organizational methods that aim to reduce negative experiences of workers belonging to marginalized groups and underrepresented identities.

About Nathan T. Carter, PhD

Nathan Carter is currently an associate professor at the University of Georgia. Nathan’s primary research area is personality and its relation to performance at work, general success and well-being. Specifically, Nathan is interested in studying how to utilize psychometric theory and analytic techniques to better understand these relationships, such as item response theory and psychometric network theory. Additionally, Nathan is interested in the role of human judgement and decision making in applicant attraction and employee selection. Nathan received his PhD from Bowling Green State University in 2011.

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