Civil rights plaintiffs seeking a fifth vote on the Supreme Court did not typically look to Justice Antonin Scalia. His nominated replacement, Judge Neil Gorsuch, is unlikely to be on the top of civil rights plaintiffs’ list for a fifth vote either, based on a review of his decisions on the U.S. Court of Appeals for the 10th Circuit and other writings. In general, Gorsuch has not been reflexively pro- or anti-civil rights plaintiffs, and often expresses empathy with plaintiffs alleging discrimination or other violations of their civil rights. But at the end of the day, he tends to vote in favor of defendants and to adopt a narrow construction of civil rights statutes about as often as one would expect from a smart, quite conservative judge.
Sex and race discrimination cases
Like most appellate judges, Gorsuch has seen his fair share of discrimination cases, mainly suits under Title VII of the Civil Rights Act. He generally rules in favor of the defendant, often in unpublished decisions. There are, however, regular exceptions, such as Williams v. W.D. Sports, N.M., Inc., in which Gorsuch wrote an opinion overturning a grant of summary judgment against a retaliation plaintiff; Orr v. City of Albuquerque, overturning a grant of summary judgment against a pregnancy discrimination plaintiff; and Barrett v. Salt Lake County, upholding a jury award for a retaliation plaintiff.
Absent a deep dive into the facts of each case, it is hard to say what such a record portends – one could give a similar description to the voting records of many liberal judges. It is important to keep in mind that many appeals in the circuit courts turn on the sufficiency of the evidence of discrimination, not the kind of legal questions likely to confront a Supreme Court justice. Nonetheless, some of Gorsuch’s decisions did involve questions of law or required an exercise of judgment that can shed some light on his likely treatment of civil rights litigants and statutes as a justice.
In Pinkerton v. Colorado Dep’t of Transp., in 2009, Gorsuch joined a 2-1 opinion upholding summary judgment against a sexual harassment plaintiff. There was no real dispute that the supervisor had harassed the plaintiff (For example, “Mr. Martinez asked Ms. Pinkerton if she masturbated and if she had breast enlargements.”). The question was whether the employer was liable for the harassing conduct of the supervisor. Under Supreme Court precedent, that question turned in relevant part on whether the plaintiff had unreasonably refused to avail herself of the employer’s procedures for reporting sexual harassment. Gorsuch and his colleague concluded that the plaintiff had failed this requirement because she waited two months before reporting the harassment. The majority acknowledged her explanation that she feared retaliation from her supervisor, but held that “a generalized fear of retaliation simply is not sufficient to explain a long delay in reporting sexual harassment.”
In 2007, Gorsuch joined an opinion in favor of civil rights plaintiffs in Simpson v. Univ. of Colo. Boulder. The plaintiffs brought Title IX claims against a university alleging that they were sexually assaulted by members of its football team. The panel reversed the district court’s grant of summary judgment to the school, holding that there was sufficient evidence to go to a jury on whether the university was deliberately indifferent to the likelihood of sexual assaults of this kind. In particular, the court found there was evidence to support a finding: “(1) that CU had an official policy of showing high-school football recruits a ‘good time’ on their visits to the CU campus, (2) that the alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a ‘good time,’ and (3) that the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference.”
In Strickland v. UPS, Gorsuch dissented from a 2009 panel decision upholding a jury verdict in favor of a female UPS driver alleging sex discrimination. The majority believed that although the manager treated many employees (male and female) poorly, even the badly treated male employees “testified Strickland was treated differently from every male employee [the manager] supervised.” Gorsuch disagreed, writing that the “record in this case shows that [the supervisor] harassed male employees in very much the same manner as he harassed Ms. Strickland.”
In Almond v. Unified School District #501, in 2011, Gorsuch wrote an opinion narrowly construing the Lilly Ledbetter Fair Pay Act – which lengthens the statute of limitations for “discrimination in compensation claims” – to not apply when two school custodians were allegedly forced to accept transfers to other custodial positions with lower pay.
In 2007, in Montes v. Vail Clinic, Inc., Gorsuch wrote an opinion holding that a hospital rule requiring housekeeping staff to speak only English when working in an operating room did not create a hostile work environment for Hispanic employees. While recognizing that English-only rules can, in some instances, violate Title VII, Gorsuch reasoned that this particular rule did not because it was limited to a specific time and place when and in which the employer had an especially strong interest in ensuring good communications between the cleaning and other medical staff.
In Zamora v. Elite Logistics, Inc., in 2007, the 10th Circuit sat en banc to review discrimination claims by an employee who alleged that his employer suspended him from work until he produced documentation of his right to work in the United States, and then fired him after he produced the documentation and demanded an apology. Gorsuch joined the majority opinion that ruled against the worker, as well as a concurrence that elaborated on the reasons for rejecting the demand-for-documentation claim. He then penned a short concurrence of his own, stating that the majority decision had wisely declined to rule on the interrelationship between Title VII (the federal employment discrimination statute) and the antidiscrimination provision of the Immigration Reform and Control Act because the plaintiff had not relied on the latter statute.
Gorsuch has not encountered many cases addressing LGBTQ rights. As noted in prior coverage of his views on religious freedom, there are reasons to think that he would tend to favor those who object on religious grounds to antidiscrimination laws protecting LGBTQ people. Moreover, as has been widely reported, in a 2005 article in the National Review, Gorsuch pointed to lawsuits seeking marriage equality as an example of liberals’ inappropriate use of litigation to advance their political agenda. His two opinions addressing LGBTQ rights are consistent with that view, but do not provide much additional insight.
In a 2009 decision that brings to mind this term’s transgender bathroom case, Gorsuch joined a short, unpublished decision denying the Title VII claims of a transgender women who was prohibited from using the women’s restroom at her workplace until she could prove she had completed sex reassignment surgery. A panel of the U.S. Court of Appeals for the 9th Circuit, with Gorsuch sitting by designation, acknowledged in Kastl v. Maricopa Co. Comm. College Dist. that under circuit precedent, “transgender individuals may state viable sex discrimination claims on the theory that the perpetrator was motivated by the victim’s real or perceived non-conformance to socially-constructed gender norms.” But it held that the employer had acted instead on the basis of unspecified “safety reasons” rather than the plaintiff’s “gender.”
In 2015, Gorsuch joined a 10th Circuit opinion denying a temporary restraining order and preliminary injunction that would have forced a state prison to provide hormone therapy to a transgender inmate and to allow the inmate to wear women’s clothes. The opinion recites:
Prior to her incarceration in 1986, Ms. Druley was diagnosed with gender identity disorder (GID) and had two of three gender reassignment surgeries needed to change the gender of her body from male to female ….. Ms. Druley alleges that the ODOC defendants violated the Eighth Amendment’s prohibition on cruel and unusual punishment by stopping and starting her prescribed hormone medications and giving her inadequately low dosages of her hormone medication.
Ms. Druley’s injunctive-relief motion requests an order directing ODOC medical staff to raise her hormone level in accordance with levels recommended by the [World Professional Association for Transgender Health] Standards of Care. Her complaint alleges that prison officials have started and stopped her hormone treatment numerous times over the last 27 years and currently prescribe a hormone dosage for her that is below the normal lowest dosage recommended by WPATH.
The panel concluded that the inmate was unlikely to succeed on the merits (and therefore was not entitled to preliminary relief) “in light of a decision from this court, Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir.1986), in which we declined to recognize a constitutional right under the Eighth Amendment to estrogen hormone therapy for inmates with GID.” Instead, the court analyzed the claim under the ordinary standard for allegations of inadequate medical care in prisons, asking whether the prison showed “deliberate indifference to a substantial risk of serious harm.” The panel concluded that the inmate had not established deliberate indifference, reasoning that WPATH Standards of Care upon which she relied “‘are intended to provide flexible directions for the treatment’ of GID, and state that ‘individual professionals and organized programs may modify’ the standards’ requirements in response to ‘a patient’s unique situation’ or ‘an experienced professional’s evolving treatment methodology.’” The panel found that “Ms. Druley presented no evidence that the ODOC defendants failed to consider the WPATH’s flexible guidelines, failed to make an informed judgment as to the hormone treatment level appropriate for her, or otherwise deliberately ignored her serious medical needs.”
The court further held that the denial of permission to wear women’s clothing did not violate the equal protection clause. The panel relied on prior circuit precedent holding that discrimination on the basis of transgender status is not entitled to heightened scrutiny under the equal protection clause. Accordingly, the court asked only whether the prison’s decision bore “a rational relation to some legitimate penal interest.” Without explaining further, the panel concluded that “Ms. Druley did not allege any facts suggesting the ODOC defendants’ decisions concerning her clothing or housing do not bear a rational relation to a legitimate state purpose.”
It is difficult to tell how much to read into this decision, given that the panel was bound by prior precedent denying a constitutional right to hormone treatment for transgender inmates and refusing to extend heightened protection against transgender discrimination under the equal protection clause. One might infer from Gorsuch’s general jurisprudential philosophy that he would be sympathetic to the prior decisions refusing to recognize these rights, but his joining this particular decision does not provide much insight into that question. Certainly, the panel had no interest in going out of its way to scrutinize the prison’s decisions on how to treat the inmate’s requests for more aggressive hormone therapy, but that could easily be attributed to a general deference towards the medical decisions of prison doctors (courts of appeals regularly seeing, and rejecting, inmate complaints about prison medical care).
Gorsuch has generally taken a narrow view of the lengths to which employers, schools and others must go to provide accommodations to individuals with disabilities.
Most notably, the Supreme Court is currently reviewing a 10th Circuit case that applied a rule adopted by Gorsuch in 2008, in Thompson R2-J School District v. Luke P.. The case concerned the scope of a school district’s obligation to provide children with disabilities a “free appropriate education,” known as a FAPE, under the Individuals with Disabilities Education Act. A prior Tenth 10th Circuit decision had stated that schools must provide a disabled student a “benefit” that is “more than de minimis” but need not maximize the child’s potential. The opinion took no further steps to say where, within that broad range, the IDEA standard fell. Gorsuch’s opinion in Luke P. changed the wording slightly, stating “that the educational benefit mandated by IDEA must merely be ‘more than de minimis.’” That slight change in wording, however, transformed the non-controversial prior statement that a de minimis benefit is not enough into a rule requiring schools to provide nothing more than a slightly more than de minimis benefit. When another 10th Circuit panel applied Gorsuch’s rule, the Supreme Court granted certiorari. From the oral argument in Endrew F. v. Douglas County School District, it appears that Gorsuch’s rule will be reversed.
In another decision touching on an issue before the Supreme Court this term, Gorsuch wrote an opinion in 2015, in A.F. ex rel Christine B. v. Espanola Public School, holding that a student could not bring suit against her school under the Americans with Disabilities Act without first exhausting the administrative process for IDEA claims. Although the student had started the IDEA process, she successfully mediated the claims, making completion of the process unnecessary. Gorsuch and one of his colleagues nonetheless held that her failure to finish the IDEA process precluded bringing suit on the same essential complaint under the ADA. Judge Mary Beck Briscoe dissented, arguing the majority’s rule provided students and their families a disincentive to settle their IDEA claims prior to the conclusion of administrative proceedings. Just last month, in Fry v. Napolean Community Schools, the Supreme Court agreed that ADA claims must be exhausted when the gravamen of the suit is the denial of the IDEA’s core guarantee of a FAPE (but not, as in Fry, when the claim relates to some other form of disability discrimination). But the court did not address whether the successful mediation of an IDEA claim satisfies that requirement.
In Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., in 2008, Gorsuch wrote a somewhat unusual decision on behalf of a unanimous panel in another IDEA case. Rather than decide whether the trial court erred in finding that the school’s alleged violations did not harm the student, Gorsuch and his colleagues ruled that even assuming there were harmful violations, the district court acted within its discretion in denying any remedy. Gorsuch noted that the IDEA’s remedial provision directs the district court to “grant such relief as the court determines is appropriate.” This language, the court held, afforded the district court its traditional broad discretion in fashioning equitable relief, including the power to deny any relief at all in some cases. Here, Gorsuch wrote, the plaintiff had shown little interest in attending school, justifying the district court’s refusal to order the school to provide her additional, “compensatory education” beyond what was already available to her at the school.
In the employment context, Gorsuch has also resisted broad constructions of disability rights statutes. For example, in Hwang v. Kansas State Univ., in 2014, the 10th Circuit confronted the question “Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act?” “Unsurprisingly,” Gorsuch wrote for the court, “the answer is almost always no.” The case involved a university professor with a one-year contract. Before the first term of teaching began, she was diagnosed with cancer and given six months of disability leave. When she could not return and asked for more time, the school refused and terminated her. The Rehabilitation Act requires federal-funds recipients, like most public universities, to provide reasonable accommodations to otherwise qualified individuals with a disability. Gorsuch wrote:
It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations—typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work.
He held open that that a brief period of leave might constitute a reasonable accommodation in some cases:
Still, it’s difficult to conceive how an employee’s absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address.
In Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, in 2012, Gorsuch and his colleagues affirmed summary judgment against the disability discrimination claims of a residential treatment center seeking a variance from zoning rules that otherwise required it to locate its facility in a rural area. Among other things, the opinion narrowly construes the disparate impact theory afforded by the Fair Housing Act. Gorsuch wrote:
[W]hile the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities. The law requires accommodations overcoming barriers, imposed by the disability, that prevent the disabled from obtaining a housing opportunity others can access. But when there is no comparable housing opportunity for non-disabled people, the failure to create an opportunity for disabled people cannot be called necessary to achieve equality of opportunity in any sense.
Finally, in 2012, in Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Oklahoma, Gorsuch wrote a panel opinion holding that Title II of the Americans with Disabilities Act does not provide a cause of action for disability discrimination in public employment. Title I of the ADA is devoted to employment discrimination, so the question was whether Title II provides overlapping protection (and potentially broader recourse). Gorsuch’s opinion gives a close reading to the statutory text and context, reaching a conclusion consistent with the majority view in the circuits.
With the occasional exception of a certain religious observance claims under the Religious Land Use and Institutionalized Persons Act, discussed in another post, Gorsuch has generally ruled against inmates bringing complaints about the conditions of their confinement.
In 2008, in Shook v. Bd. of Cty. Commissioners of Cty. of El Paso, Gorsuch wrote an opinion upholding denial of class certification of inmates with mental illness held in a county jail. The inmates alleged a broad range of inadequacies in the treatment of mentally ill inmates, including denial of medications, inadequate monitoring of suicidal inmates and excessive use of force. Gorsuch wrote that class certification was properly denied because the class members’ conditions and experiences were too diverse to be treated on a class-wide basis. The plaintiffs could not avoid the need for individualized remedies by asking for relief in broad terms such as seeking “safe and appropriate housing” or an order prohibiting uses of force that “pose a substantial risk of serious harm.” Gorsuch suggested instead that the inmates bring individualized actions for damages and held open the possibility of another, more narrowly defined class action in a future case.
Gorsuch rejected a male inmate’s objection to being strip-searched by a female guard in Harvey v. Segura, in 2016. In a short, unpublished decision, the court simply declared that it saw no flaw in the district court’s ruling that “Mr. Harvey failed to allege any facts suggesting that the search was conducted in an abusive fashion or with excessive force and, accordingly, failed to plead a claim under the Eighth Amendment.” At the same time, Gorsuch ruled that the guard was entitled to qualified immunity against the inmate’s First Amendment freedom of religion claim because “it wasn’t clearly established at the time of the incident here that a prisoner had a right to be free from a strip search by a guard of the opposite sex on the basis of religious convictions.”
Gorsuch did, however, rule in favor of a young boy subjected to abuse in a juvenile detention facility in Blackmon v. Sutton, in 2013. He introduced the case this way:
Weeks before eleven-year-old, 4′11,″ 96–pound Brandon Blackmon arrived at the juvenile detention center in Sedgwick, Kansas, officials there made a new purchase: the Pro–Straint Restraining Chair, Violent Prisoner Chair Model RC–1200LX. The chair bore wrist, waist, chest, and ankle restraints all. In the months that followed, the staff made liberal use of their new acquisition on the center’s youngest and smallest charge. Sometimes in a legitimate effort to thwart his attempts at suicide and self-harm. But sometimes, it seems, only to punish him. And that’s the nub of this lawsuit.
The panel held that, at least on the plaintiff’s version of the facts at summary judgment, the defendants crossed a clearly marked constitutional line and were therefore not entitled to qualified immunity.