What employers might expect from SCOTUS nominee


With President Trump’s selection of Judge Neil Gorsuch to fill the vacant seat on the Supreme Court, the top question on the mind of Atlanta employers is, if confirmed, how will the newest justice treat workplace law cases?

To answer that question, we once again turn to the Magic 8-Ball. This is something law firm Fisher Phillips introduced in 2006 when examining the appointment of Justice Samuel Alito, and again for Justice Sonia Sotomayor in 2009 and Justice Elena Kagan in 2010.

We now ask the same question asked of previous appointees: If confirmed, will Justice Gorsuch be kind to employers? The answer: “Signs point to yes.”

Here are the Magic 8-Ball’s answers regarding other critical workplace law issues:

Will Judge Gorsuch’s Down-To-Earth Style Aid Employers?

“You May Rely On It”

Despite Judge Gorsuch’s sterling educational background and impressive work history, it is common to hear him described as “down to earth” and a “regular guy.” His commonsense approach shines through in his legal decisions, often to the benefit of employers. In at least four cases, it would have been easy for Judge Gorsuch to rule in favor of an employee given the initial review of the case facts. But it is his ability to apply sound and reasonable logic to these matters that separates him from most other jurists.

Will Judge Gorsuch Always Rule For Employers On Gender-Related Claims?

“Don’t Count On It”

When it comes to gender-related claims, he has demonstrated the ability to render rulings for both employers and employees. In Gaff v. St. Mary’s Regional Medical Center (2012), Judge Gorsuch affirmed the dismissal of a sexual harassment claim brought after a coworker engaged in “boorish and immature conduct,” ruling that the actions were neither severe nor pervasive. But in the 2008 decision of Orr v. City of Albuquerque, Judge Gorsuch revived a pregnancy discrimination claim brought by two female workers that had been dismissed by the lower court. He determined sufficient evidence existed to support the plaintiffs’ allegations that they were mistreated in the way they were forced to take maternity leave.

Will Judge Gorsuch Consistently Rule For Employers In Retaliation Cases?

“My Sources Say No”

Although he has ruled in employers’ favor at times, he is not shy about upholding the rights of employees to proceed with retaliation lawsuits. For example, he ruled that a seven-week gap between protected activity and an adverse action did not create sufficient temporal proximity sufficient to support a retaliation claim on its own in Bergersen v. Shelter Mut. Ins. Co. (2007). But in Barrett v. Salt Lake County (2014) and Walton v. Powell (2016), he upheld the rights of workers to proceed with retaliation claims, affirming lower court decisions in their favor.

Will Judge Gorsuch Support Workplace Safety?

“As I See It, Yes”

In several instances, Judge Gorsuch has been faced with a case involving an employer that took action in the name of workplace safety, and in each case he ruled in favor of that employer. In the 2013 case of Keeler v. ARAMARK, he upheld the dismissal of a worker fired for threatening to “start a riot” after not being named employee of the month, rejecting his retaliation claim. In the Gaff v. St. Mary’s case discussed above, he rejected a retaliation claim and upheld the plaintiff’s termination for telling a coworker that she “owned a gun and knew how to use it.”

Will Judge Gorsuch Support Employers’ Religious Freedom?

“Without A Doubt”

It seems likely that the Trump administration looked to Judge Gorsuch’s record on religious freedom when it came time to make a final selection. What seems certain is that Judge Gorsuch is not afraid to take what many might consider a controversial position in this debate. Perhaps his most notable opinion came in the 2013 case of Hobby Lobby Stores Inc. v. Sebelius, where he ruled that the Affordable Care Act’s contraception mandate could not be forced upon those employers with religious objections.

Will Judge Gorsuch Be An Enemy Of The NLRB?

“Outlook Not So Good”

Although Judge Gorsuch is largely employer-friendly and is skeptical of the power of administrative agencies, it is interesting to note that he has consistently upheld decisions issued by the National Labor Relations Board (NLRB). Some of these decisions have aided unions and some have aided employers, so this pattern does not necessarily reveal any anti-employer (or anti-union) animus.

Will Judge Gorsuch Tangle With Regulatory Agencies?

“Yes, Definitely”

Perhaps the single-most defining characteristic that led President Trump to select Judge Gorsuch as his SCOTUS nominee is the judge’s avowed hostility towards regulations. The president campaigned on a platform that promised to rid the country of burdensome regulations, and Judge Gorsuch will certainly aid in that effort. He has made a name for himself as someone who is no fan of the powers of regulatory agencies.

If Confirmed, Will Judge Gorsuch Have A Lasting Impact?

“The Answer Is Yes”

One of Judge Gorsuch’s greatest assets is his youth – he is only 49 years old, seven years younger than the current most youthful justice (Justice Elena Kagan), and about 30 years younger than the three oldest justices (Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Anthony Kennedy). If confirmed, he could easily enjoy between 20 to 30 years on the bench of our nation’s highest court, and take part in hundreds of cases that shape our workplace laws.

Bert Brannen is managing partner of the Atlanta office of labor and employment law firm Fisher Phillips. Richard Meneghello is a partner in the firm’s Portland office.



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