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What Kavanaugh's Supreme Court Appointment May Mean for US Employers

HR Column
I n 2016, we examined what a Trump Presidency might mean for US employers. We flagged the potential replacement of Justices Kennedy, Ginsburg, and Breyer, who this year are 82, 85, and 80, respectively. Justice Anthony M. Kennedy is the first to retire after three decades on the high court, paving the way for US President Donald Trump to nominate Judge Brett Kavanaugh to the US Supreme Court. This is President Trump's second nominee after Justice Neil M. Gorsuch was confirmed in April 2017.

What might this nomination mean for employers?

Who is Judge Brett M. Kavanaugh?

  • Born in Washington, DC and known as a longtime Washington insider, Brett Kavanaugh currently serves as a judge on the District of Columbia US Circuit Court of Appeals.
  • A graduate of Yale Law School, one of Judge Kavanaugh's three clerkships was for the retiring Justice Kennedy. At the time of Kavanaugh's clerkship, Justice Neil M. Gorsuch was working for Justice Byron White and part-time for Justice Kennedy as well.
  • Both Kavanaugh and Gorsuch attended Georgetown Preparatory School in Maryland.
  • Kavanaugh twice worked for Solicitor General of the United States, Kenneth Starr. During his second position, as associate counsel in the office of the independent counsel, he was a principal author of the 1998 Starr Report to Congress on the investigations of Monica Lewinsky's and President Bill Clinton's relationship and on the death of Clinton's deputy White House Counsel, Vincent Foster. Kavanaugh urged Clinton's impeachment.
  • Judge Kavanaugh was White House Staff Secretary to US President George W. Bush from 2003 to 2006 when nominated for the federal appellate bench. There he met his future wife, Ashley Estes, who served as Bush's secretary when he was governor of Texas and as Bush's personal secretary when he was president. Ashley Estes Kavanaugh is town manager of Section 5 of Chevy Chase, Maryland.
  • According to Fortune.com, Kavanaugh's nomination was vetted and approved by the Federalist Society, an influential group of conservative lawyers with plans to reshape the government.
  • This nomination doesn't change the diversity of the Supreme Court bench, where women, racial minorities, LGBTQ, and non-Yale or Harvard graduates are underrepresented.

[Related: 9 Tips for Accommodating Transgender Employees in the United States]

Potential impact on the Supreme Court

Kavanaugh's opinions during 12 years on the federal appellate bench reflect strong conservative views; he has ruled in favor of business interests in employment cases and in resolving regulatory issues. Because Supreme Court justices receive lifetime appointments, at age 53, Kavanaugh could serve for decades, tipping the court further to the right, with a potentially significant impact on workplace laws. Various civil rights organizations have taken a strong stance against Judge Kavanaugh's record.

Judge Kavanaugh has been critical of the expanding powers of federal administrative agencies, frequently ruling against agencies such as the National Labor Relations Board.

Judge Kavanaugh also will likely lend strong support to the Trump administration's immigration agenda, as his prior immigration decisions suggest a tendency to interpret the law to protect US workers.


[Related: 6 US Employment Trends to Watch in 2018]

Kavanaugh on employment

While not universally so, Judge Kavanaugh's opinions have typically favored employers:
  • In a 2007 opinion, he sided with the Bureau of Prisons, finding that the employer's hiring decision was based on factors that encompassed the broader more general job description and did not raise an inference of discrimination sufficient to overcome summary judgment. The employee had alleged racial discrimination after being passed over for promotion and learning that the employer had based its hiring decision on a factor not included in the job description.
  • In 2011, Judge Kavanaugh upheld the dismissal of race and gender discrimination claims brought against an organization and its CEO. Considering a documented history of an employee's performance, Kavanaugh found sufficient justification in the CEO's decision to fire the employee due to incompatible working styles.
  • In 2013, an employee alleged he had been called a racial slur by a supervisor.  Kavanaugh found that a single verbal incident of such severity could sustain a hostile work environment claim.
  • In 2016, he agreed that when an employer rejected a lateral transfer application for race or gender-based reasons, a worker could sustain a valid Title VII claim.
  • In 2017, an employee claimed he was terminated in retaliation for complaining to the Occupational Safety and Health Administration (OSHA) and filing a complaint with Equal Employment Opportunity Commission (EEOC). Judge Kavanaugh refused to recognize a private right of action for employees under the retaliation provision of the OSH Act, and found the employer's justification for the termination legally acceptable.
  • In 2017, an employee sued the Department of Homeland Security for violating her rights under the Privacy Act for disclosing an investigative report on her past misconduct to her subsequent employer. Kavanaugh rejected the claim, concluding that the disclosure was appropriate.

[Related: 8 Tactics to Roll Back Racial Bias at the Office]

The road ahead

Republicans want a swift confirmation process, intending to seat Judge Kavanaugh to the Supreme Court before the October 2018 term begins (and before midterm elections). Democrats intend to oppose the nomination, which is expected to be contentious. The Senate Judiciary Committee will vet Kavanaugh through interviews and a hearing. From there, the nomination will proceed to the full Senate for debate and a vote. With a slim Republican majority in the Senate (51-49), it remains to be seen whether, as in the case of now-Justice Gorsuch, some Democrats will vote in favor of confirmation.

About the Author

Spiwe L. JeffersonSpiwe L. Jefferson is general counsel of ChristLight Productions Ltd., LLC, Patron Fellow of the American Bar Foundation, and board secretary and legal advisor to The BrandLab. She is a member of the ACC employment and labor, law department management, and litigation sections.


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