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Supreme Court Pick Seen as Generally Favorable to Employers

While much of the attention surrounding President Donald Trump’s pick for the U.S. Supreme Court has been on abortion, the Second Amendment, and other hot-button issues, his stance on employment issues is not to be overlooked.

Trump announced his nomination of Judge Brett Kavanaugh for the Supreme Court on July 9. If confirmed by the Senate, he will fill the vacancy left by retiring Justice Anthony Kennedy.

Charles H. Kaplan, an attorney with Sills Cummis & Gross P.C. in New York City, says Kavanaugh has written extensively on labor and employment law issues during his 12 years of service on the U.S. Court of Appeals for the District of Columbia Circuit.

“In general, Judge Kavanaugh has leaned in favor of employers,” Kaplan said, but he hasn’t hesitated to rule in favor of employees or the National Labor Relations Board (NLRB) where the facts warranted such a decision.

Among Kavanaugh’s pro-employer decisions, Kaplan cited a case concerning a hotel cook who claimed he was unlawfully discharged in retaliation for making a safety complaint and filing charges with the Equal Employment Opportunity Commission. Kavanaugh and his fellow judges sided with the employer, holding that there is no private right of action for retaliation under the Occupational Safety and Health Act and concluding that the employer had legitimate, nonretaliatory reasons to discharge the worker that weren’t a pretext (or coverup) for employment discrimination.

Kaplan also cited the example of a recent dissent in which Kavanaugh criticized his colleagues’ enforcing an NLRB ruling that two small businesses were alter egos, and thus a single employer. “Judge Kavanaugh reasoned that these two manufacturers were not alter egos because the companies did not commingle monies, did not share workers, and did not have common management or ownership,” he said.

Another pro-employer stance came when Kavanaugh joined in enforcing an NLRB decision that a Detroit union local’s policy, which required union members to come into the office in person with a photo ID to submit a written request to resign from the union or halt their union dues checkoff, was coercive and violated the National Labor Relations Act.

But Kavanaugh hasn’t always sided with employers against claims made by employees. Kaplan pointed to a case in which an employee alleged that his supervisor had on only one occasion called him the N-word. Kavanaugh wrote a concurring opinion in which he stressed that the supervisor’s use of the N-word even once could create an unlawful racially hostile work environment.

“In sum, Judge Kavanaugh will generally be sympathetic to employers’ arguments. However, he will not hesitate to rule in favor of unions or employees in cases in which management has clearly violated labor and employment laws,” Kaplan said.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.