SCOTUS nominee ‘excellent’ choice for employers

February 01, 2017 - by: Kate McGovern Tornone 0 COMMENTS

President Donald Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court’s vacant seat may be good news for employers, according to employment law attorneys.

Gorsuch is known for adhering to the letter of the law, which means he won’t create any new rights through judicial activism, according to John Husband, a senior partner at Holland & Hart in the judge’s hometown of Denver.

Trump announced his pick January 31, calling Gorsuch “a man who our country really needs—and needs badly—to ensure the rule of law and the rule of justice.”

In response, Gorsuch promised to interpret the U.S. Constitution and laws strictly. “In our legal order, it is for Congress and not the courts to write new laws,” he said. “It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”

That philosophy is good news for employers, said Husband, an editor of Colorado Employment Law Letter. “[Gorsuch is] an excellent choice for employers. He follows the law to a T. He doesn’t try to create law through judicial interpretation,” Husband said. “He’s going to be a very, very proemployer justice.”

Gorsuch, who currently sits on the U.S. 10th Circuit Court of Appeals, is known for his role in the Hobby Lobby decision. In that case, he joined in the 10th Circuit’s opinion that employers can claim a religious exemption from the Affordable Care Act’s (ACA) mandate to cover birth control in health plans. The Supreme Court later agreed.

Gorsuch’s other employment-related opinions, however, had varying outcomes, according to H. Juanita Beecher, of counsel with Fortney & Scott and an editor of Federal Employment Law Insider. “He doesn’t always side with employers and he doesn’t always side with employees,” she said. His confirmation would simply bring the Court back to where it was with Justice Antonin Scalia, she said.

Expectations

If Gorsuch is confirmed, federal regulations could face additional scrutiny by the Supreme Court, according to Beecher. It’s no secret that he isn’t a fan of “Chevron deference,” a legal standard under which courts defer to a federal enforcement agency’s regulatory interpretation of a law. Regulations issued by the Obama administration could be particularly at risk, Beecher said.

A case challenging class action waivers may be one of Gorsuch’s first opportunities to weigh in on employment law. Earlier this month, the Court agreed to hear a trio of wage and hour cases involving arbitration agreements that require workers to waive their right to pursue employment claims as a group.

Depending on how his confirmation process goes, Gorsuch could be on the Court in time for the question to be in front of him, Beecher said. The case questions whether the National Labor Relations Board (NLRB) went too far in interpreting federal law as prohibiting the waivers. With Gorsuch tipping the Court 5-4 to the right, Beecher suspects it would rule that the law doesn’t go that far. “If you take his view on Chevron deference, he’s not going to defer to the Board’s view,” she said. “He’s going to look at the law and make his own decision.”

Husband agreed. The Supreme Court has previously supported arbitration and “I believe a strict constructionist will also favor arbitration,” he said. “I think it will tip in favor of the employer on that issue.”

Gorsuch also may have the opportunity to consider whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. The question is pending in several courts of appeal and could soon be ripe for Supreme Court review, Beecher and Husband said.

If Gorsuch is on the Court, “he’s not going to create rights,” Husband said. “He believes in Congress and if they want to pass a law, they can pass a law, and he’ll uphold it.”

Beecher agreed that Gorsuch is unlikely to read coverage of sexual orientation into Title VII. Congress has been considering legislation that would add such protection to Title VII for more than 20 years. “So there’s a pretty strong argument that at least the Congress doesn’t think [sexual orientation is] covered,” she said.

Confirmation

Both Husband and Beecher said the nominee is well qualified, but that doesn’t mean his confirmation is a sure thing.

Senator Elizabeth Warren (D-MA), along with several other Democrats, has promised to oppose Gorsuch’s confirmation. “As a judge, he has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct,” she posted on Facebook after the announcement. “He has ruled against workers in all manner of discrimination cases.”

Under different circumstances, Gorsuch may not have faced such strong opposition, Beecher said. But because of Trump’s recent Executive Orders, Democrats may fight this move “tooth and nail” since it’s one thing over which they have some control.

Republicans have warned, however, that they might employ the so-called nuclear option if Democrats try to block Gorsuch’s confirmation. That option would allow them to move forward with only a simple majority, but it isn’t currently permitted for Supreme Court nominees. Republicans, however, have threatened to change the rule.

It will be interesting to see how it plays out, Beecher said. “We’ll just have to wait and see.”

About Kate McGovern Tornone:
Kate Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, coauthored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a bachelor of arts in media studies. Kate can be reached at ktornone@blr.com.
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