Supreme Court Nominee Gorsuch and Employment Law

President Donald Trump has nominated Neil Gorsuch to the U.S. Supreme Court to fill the seat of the late Justice Antonin Scalia. As Congress, civil rights and advocacy organizations prepare for a vote on his nomination, Gorsuch’s previous record as a federal judge is under scrutiny. In the employment law context, Judge Gorsuch looks unwilling to give judicial deference to labor and employment agency regulations and unlikely to interpret statutes in a manner as to benefit employees.

Prior to serving on the Tenth Circuit Court of Appeals, Judge Neil Gorsuch worked in both public and private practice. After receiving his law degree from Harvard he clerked for Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit. He was also a Supreme Court clerk for both Justice Anthony Kennedy and Justice Byron White. Following his clerkships he became a partner for a corporate law firm and then went on in 2005 to work at the U.S. Department of Justice as a high-ranking lawyer in the Justice Department under President Bush.

In his more than a decade on the U.S. Court of Appeals for the Tenth Circuit, Judge Gorsuch’s record on employment-related matters includes decisions both reversing and affirming summary judgment for employers, but his tendency towards narrow rulings reveals a reluctance to burden employers. Moreover, his skepticism of agency regulations could lead him to overturn Obama-era regulations issued by agencies such as the NLRB or EEOC.

The National Employment Lawyers Association (NELA), the largest professional membership organization in the country comprising lawyers who represent workers in labor, employment and civil rights disputes, has expressed strong opposition to the nomination of Judge Gorsuch. In a letter to Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member Dianne Feinstein the organization cited his “troubling propensity to draw inferences against plaintiff-employees” and his tendency to adopt “inappropriately narrow readings of both the facts and law in ways that operate to the detriment of employees seeking to vindicate their statutory rights.”

Judge Gorsuch’s dissent in the Tenth Circuit decision of Trans Am Trucking v. DOL Administrative Review Board is an example of his unwillingness to interpret laws in a manner that allows for broad protection of employees. In the dissent he criticized the majority for giving deference to the Department of Labor’s interpretation of a statute that prohibits an employer from firing an employee who refuses to operate a vehicle due to safety concerns, and disapproved of the reliance on the policy of public health and safety. (Correia & Puth represents workplace whistleblowers, and is committed to ensuring that employees are protected when they take a stand for workplace safety. Please contact us for further information).

Judge Gorsuch showed a similar reluctance to defer to the interpretations of law made by labor and employment agencies in National Labor Relations Board v. Community Health Services.  In his dissent he criticized the majority of that court for upholding the NLRB’s policy of disregarding interim earnings made by full-time workers when calculating a back-pay award. He claimed the NLRB had not provided reasonable justifications for its position and asserted that “federal agencies must take care to respect boundaries of their congressional charter.”

Judge Gorsuch also joined the majority in Hobby Lobby Stores, Inc. v. Sebelius, later affirmed by the Supreme Court, in holding that corporations are persons exercising religion for purposes of the Religious Freedom Restoration Act (RFRA) and the Affordable Care Act’s contraceptive-coverage requirement is not enforceable as to the corporation. The Hobby Lobby decision has been invoked not only to support curtailing employees’ access to reproductive health care but also in other cases where the employer asserts a religious objection as a defense to workplace discrimination. For example, in August 2016 a federal judge in Michigan ruled that a funeral home had the right to terminate a transgender employee, citing the religious convictions of the business owners. Correia & Puth represents individuals who have experienced discrimination because of their gender identity and believes that such an interpretation of law could undermine critical civil rights protections on the state and national level.

The impact of Judge Gorsuch, if confirmed, could be felt quickly with the Supreme Court set to decide in an upcoming term whether businesses can force employees to waive class action rights. Additionally, with Circuit splits on cases involving FLSA overtime exemptions and the protection of subgroups in age-discrimination cases his presence on the bench could influence significantly the force of state and federal civil rights and whistleblower protections om the workplace.