By Kathleen J. Jennings (firstname.lastname@example.org)
On Monday, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals was nominated to the U.S. Supreme Court. Kavanaugh is a graduate of Yale Law School who clerked for retiring Justice Kennedy (at the same time as Justice Gorsuch). He was appointed to the D.C. Circuit in 2003 by George W. Bush and was confirmed after 3 years.
If confirmed (which is probable), Kavanaugh would bring a pro-business approach to the highest court. Some of the labor and employment issues where his vote could influence the direction of the law are the following:
- Harassment of the basis of sexual orientation. As discussed in previous blog posts, there is currently a conflict in the Circuits regarding whether Title VII covers harassment on the basis of sexual orientation. I predict that with Kavanaugh in the majority, the Supreme Court will narrowly interpret Title VII and find that it does not cover harassment on the basis of sexual orientation.
- Joint employer test. The legal issue of whether one business is the joint employer of another business’s employees is an important one for businesses that subcontract out some work to other businesses. Under the Obama administration, the parameters of the joint employer relationship were expanded. In his writings for the D. C. Circuit, Kavanaugh has taken a narrow view of joint employer issues. Should the issue of what constitutes a joint employment relationship come to the Supreme Court, it is probable that Kavanaugh will continue to use that narrow approach.
- Mandatory arbitration of employment disputes. In the most recent session, the Supreme Court upheld the validity of class action waivers. It is likely that the issue of mandatory arbitration agreements for individual employment disputes could come before the Supreme Court next term. If so, it is probable that the Court, including Kavanaugh, will uphold the use of mandatory arbitration agreement for individual disputes.
- Deference to administrative agency interpretations and rulemaking. In his writings, Kavanaugh does not appear to be a big fan of administrative agencies, and he appears to be disinclined to show deference to their interpretations of their regulations.
The takeaway: The addition of Kavanaugh to the Supreme Court will result in more favorable decisions for employers and businesses.
Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at email@example.com.
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