On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia to the Supreme Court. If confirmed, Judge Kavanaugh will fill the seat recently vacated on July 31 by retiring Supreme Court Justice Anthony Kennedy. Here’s what we know about Kavanaugh and how his appointment to the Court will impact emerging issues in labor and employment law.
Judge Kavanaugh has been a member of the D.C. Circuit for the past twelve years and has an extensive paper trail, especially with respect to reviewing administrative agency determinations. He is generally perceived as contemplative and precise, with a reputation as a textualist and originalist jurist, meaning that he attempts to interpret legal texts as written and according to their original understandings at the time they were enacted. The resulting consequence often finds Judge Kavanaugh skeptical of administrative agency rulings, making him perhaps more likely to restrain agencies from broad interpretations of their own rules.
The National Law Review took the liberty of surveying several of Judge Kavanaugh’s prior opinions on topics relating to corporate governance, workplace discrimination, employee benefits, immigration, labor and workplace privacy. Though this lists several of Judge Kavanaugh’s prior opinions – each of which are worthy of attention – two particular examples provide unique insight as to what we might see from him on the Supreme Court. Both examples suggest Judge Kavanaugh’s judicial philosophy occasionally results in interpreting anti-discrimination statutes in a manner that would arguably make it easier for employees to establish prima facie discrimination claims.
First, in Ortiz-Diaz v. United States HUD (D.C. Cir. 2016), the D.C. Circuit reviewed a claim under Title VII of the Civil Rights Act alleging that refusal to grant a lateral transfer amounted to an adverse employment action. In that case, the three-judge panel initially determined that this did not amount to an adverse-employment action, but later reversed itself sua sponte, ultimately concluding that when an employer denies lateral transfer for reasons based on race or gender, the employer violates Title VII. Judge Kavanaugh issued a concurring opinion in both decisions in favor of an expansive reading of the definition of adverse employment actions under the Act to include discriminatory refusals for granting lateral transfer requests.
Likewise, in Ayissi-Etoh v. Fannie Mae, (D.C. Cir. 2013), Judge Kavanaugh issued a concurring opinion concluding that a single verbal incident should be sufficient to establish a hostile work environment. This is because, according to Kavanaugh, the appropriate standard set forth by the Supreme Court is whether alleged conduct is “sufficiently severe or pervasive” and not “sufficiently severe and pervasive,” and that a single racial slur directed at an employee from a supervisor was sufficient to establish a hostile work environment.
These examples should not be taken as definitive predictors of how Judge Kavanaugh would rule as a member of the Supreme Court. Although while not outcome-predictive, they are useful insights to Judge Kavanaugh’s interpretive methodology and how that may influence Supreme Court rulings in the coming years if he is confirmed to the high Court.