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Judge Kavanaugh on work law

Charlotte Garden is an associate professor at Seattle University School of Law.

This post analyzes Judge Brett Kavanaugh’s most significant work-law opinions. Although several are already receiving attention and analysis – especially his dissent in a case that arose after a killer whale killed a trainer – Kavanaugh has drafted dozens of other opinions in labor and employment-discrimination cases. Overall, these opinions reflect that Kavanaugh tends to interpret narrowly the limits that work law places on employers, resulting in judicial and agency deference to employers’ decisions. For example, Kavanaugh has interpreted statutes or controlling Supreme Court cases in ways that exclude certain workers from coverage or bar certain types of claims. When he writes in cases in which he parts ways with his colleagues, it is often because he has a more employer-friendly view of the law than they do.

“Playing with dangerous animals”

SeaWorld of Florida v. Perez is already receiving significant attention. The case involved a penalty imposed on SeaWorld following a tragic incident in which a killer whale named Tilikum “grabbed [a trainer] and pulled her … into the pool, refusing to release her.” The trainer drowned; worse, this was the second time Tilikum had killed a trainer. The Department of Labor found, and the Occupational Safety and Health Review Commission and a panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed, that SeaWorld had violated OSHA’s general duty-clause. The majority held that the commission was not unreasonable in concluding that SeaWorld was aware of the danger posed by working with killer whales in general, and Tilikum in particular, and the company could have taken safety measures that would have lessened the risk to the trainer – including measures that SeaWorld had already implemented by the time the case reached the court.

Kavanaugh dissented, writing that the Department of Labor could not apply the Occupational Safety and Health Act to killer-whale performances (or sports events or entertainment shows). Kavanaugh’s argument was threefold: first, that the DOL had not previously taken jurisdiction over certain inherently dangerous jobs; second, that DOL “irrationally and arbitrarily distinguishe[d]” SeaWorld’s killer-whale show from the NFL or NASCAR; and third, that Congress did not intend OSHA to reach sports and entertainment.

Kavanaugh’s dissent is infused with the idea that employers should be free to decide to market an experience that is dangerous for workers, and workers should be free to participate, without interference from “paternalistic[]” regulators. (Here, there are certain parallels to Justice Neil Gorsuch’s opinion in the “frozen trucker” case, in which Gorsuch described the prospect of waiting in a dangerously cold, disabled truck for help to arrive as an “option” given by the driver’s employer.) For example, Kavanaugh began his opinion by asserting that “participants in [dangerous sports and other activities] want to take part … despite and occasionally because of the known risk of serious injury.” In contrast, he continued, the “bureaucracy at the U.S. Department of Labor has not traditionally been thought of as the proper body to decide whether to … separate the lions from the tamers at the circuit, or the like.”  Later, in the course of expanding on the first of his reasons for reversing the DOL, Kavanaugh wrote that “playing with dangerous animals” was an inherent part of animal shows, and that it was largely up to “[m]anagement and participants” to “decide what their competition or show consists of and how to market it to spectators.”

Labor law cases

Kavanaugh has written a number of opinions reviewing National Labor Relations Board decisions; in many of these cases, he voted to reverse the board.

Agri Processor v. NLRB arose after a meat wholesaler refused to bargain with its employees’ newly elected union, claiming that the election was invalid because a number of the employees who voted in it were not authorized to work in the United States. The timing suggested that the employer may have investigated its employees’ immigration status because it was unhappy with the results of a union election; as the majority opinion, written by Judge David Tatel, noted, “the company claimed that after the election it put the Social Security numbers given by all the voting employees into the Social Security Administration’s online database and discovered that most of the numbers were either nonexistent or belonged to other people.”

The case turned on whether undocumented workers qualify as “employees” under the National Labor Relations Act, an issue that the Supreme Court answered affirmatively in 1984, in Sure-Tan, Inc. v. NLRB. The Agri Processor majority held that Sure-Tan controlled, even though Congress had since amended immigration law (but not the NLRA) to prohibit employers from hiring unauthorized workers; Henderson wrote separately to criticize the outcome, but nonetheless agreed that “we must follow Sure-Tan[].” Kavanaugh dissented, characterizing the issue in the case as follows: “Their immigration status apparently unbeknownst to their employer, illegal immigrant workers voted in a union election and affected the election’s outcome. The employer later discovered that the workers were illegal … and sought to overturn the tainted union election.” In Kavanaugh’s view, Sure-Tan tied “the NLRA’s definition of ‘employee’ to the immigration laws’ prohibition or non-prohibition on employment of illegal immigrant workers.” In other words, he thought Sure-Tan required the court to reconcile the NLRA and immigration law by excluding from NLRA coverage anyone who could not legally be hired in the United States.

Kavanaugh also dissented in Island Architectural Woodwork v. NLRB, in which the court was charged with reviewing the NLRB’s conclusion that an employer, Island, had set up an alter ego in order to evade its obligation to bargain collectively. The new company, Verde, was managed by former employees of Island – including its owner’s two daughters, who also owned a majority stake in the new company. Verde also operated out of a building owned by Island (rent-free for a time), employed former Island employees, and worked with Island to produce a product for Island’s main customer. Further, none of these arrangements were memorialized in contracts until the NLRB began to investigate. That investigation was prompted when Island, whose employees were unionized, asked the union during collective bargaining to “waive any claim to represent workers at Verde.” The union refused, and then Island refused to agree to a CBA.

The board decided that Verde was an alter ego of Island, meaning the existing CBA should have applied to Verde’s employees, and that Island had committed an unfair labor practice by demanding that the union disclaim interest in Verde’s workers as a condition of reaching an agreement. The court majority held that the board’s conclusion was supported by substantial evidence. But Kavanaugh would have decided that the companies were not alter egos, because they lacked common ownership and management, did not share employees, and did not mingle funds. In light of those facts, Kavanaugh wrote that the countervailing considerations on which the board and the majority relied “[did] not remotely support a finding of alter ego status.”

Kavanaugh wrote majority opinions in three significant cases overturning the NLRB; of those, two were unanimous. The outlier was Verizon New England v. NLRB, in which Kavanaugh wrote an opinion in which Judges Karen Henderson and Sri Srinivasan each concurred in part. Verizon arose after a unionized employer ordered three employees to stop displaying pro-union picket signs in the windows of their cars, parked in the company lot. That order would have violated the NLRA, but the employer argued that the applicable collective-bargaining agreement waived the employees’ rights to display the signs. An arbitrator agreed, because the CBA stated that employees would not “picket[] … any of the Company’s premises.”

The union appealed that decision to the NLRB, which at the time upheld arbitral awards that were not “clearly repugnant” to the NLRA. Despite that deferential standard, the board overturned the award, reasoning that the CBA’s purported waiver was not “clear and unmistakable,” as it was required to be, because displaying a sign in a car lacked the “confrontational” aspect that characterizes picketing. Kavanaugh and Henderson voted to reverse the NLRB, with Kavanaugh writing that the “arbitration decision was far from egregiously wrong,” and that the NLRB had previously included stationary signs within the definition of “picket.” (Kavanaugh also interpreted the controlling legal standard in a way that was somewhat more deferential to the Board than did Henderson.) Srinivasan would have affirmed the NLRB’s decision, emphasizing the court’s obligation to defer to reasonable board decisions.

Kavanaugh wrote for a unanimous court, vacating board decisions in both Southern New England Telephone Co. v. NLRB and Venetian Casino Resort v. NLRB. In Southern New England, the court rejected as unreasonable an NLRB decision that AT&T Connecticut committed an unfair labor practice by banning employees from wearing union shirts that said “Inmate” and “Prisoner of AT$T.” Because the NLRA usually protects employees’ right to wear union shirts, the question was whether there were “special circumstances” that justified the ban. Of note, Kavanaugh seemed to limit the deference with which he reviewed the board’s decision, citing an earlier D.C. Circuit decision stating that the board’s “expertise is surely not at its peak in the realm of employer-customer relations.” Kavanaugh credited the employer’s assertion that it believed the shirts might harm its relationship with its customers over the board’s contrary conclusion. And in Venetian Casino, Kavanaugh held that an employer who called the police in good faith to report that union picketers were trespassing on its property was entitled to immunity from unfair-labor-practice liability under the First Amendment doctrine known as Noerr-Pennington immunity. (The court then remanded to determine whether the employer’s call was made in good faith.)

Kavanaugh sometimes wrote in affirmance of the board as well. In New York-New York, LLC v. NLRB, a unanimous panel upheld an NLRB decision that employers cannot “bar employees of an onsite contractor from distributing union-related handbills on the property.” (Henderson concurred to emphasize aspects of the decision, but also joined the majority opinion.) And United Food and Commercial Workers v. NLRB, another unanimous panel affirmed a board decision that employees working in a Wal-Mart meat department were no longer an appropriate bargaining unit once Wal-Mart made the decision to change the department’s responsibilities from cutting meat onsite to selling pre-cut packaged meat.

Finally, Kavanaugh reviewed labor arbitration decisions in a handful of cases. In National Postal Mail Handlers Union v. American Postal Workers Union, Kavanaugh wrote for the majority, enforcing an arbitrator’s “probably erroneous” decision that a jurisdictional dispute between two unions was arbitrable, in light of the deference due to labor arbitrators’ decisions. Then-Chief Judge David Sentelle dissented because, in his view, the award relied on the arbitrator’s “external legal theories” instead of drawing its essence from the contract, as required. And Kavanaugh vacated an arbitrator’s decision in United States Department of the Navy v. Federal Labor Relations Authority – a unanimous decision that turned on the court’s view that the arbitrator’s decision, which required the Navy to bargain with its employees’ union before discontinuing its practice of supplying bottled water, was inconsistent with statutory limits on unnecessary federal spending.

Employment-discrimination cases

Employment-discrimination plaintiffs often have a difficult time winning in federal court, as perhaps reflected in a number of Kavanaugh’s unanimous opinions affirming grants of summary judgment or motions to dismiss to employers in such cases. These cases include Adeyemi v. DC, Baloch v. Kempthorne, Brady v. Office of the Sergeant at Arms, Foote v. Moniz and Johnson v. Interstate Management Corp. Each of these cases was unanimous, although Judge Patricia Millett concurred in Johnson, which involved both discrimination and OSHA claims, indicating that she disagreed with how Kavanaugh characterized the record. In one other case, Jackson v. Gonzales, Kavanaugh wrote for the majority to affirm a grant of summary judgment for the defendant-employer, the federal Bureau of Prisons. Kavanaugh saw the case as a straightforward example of a more qualified candidate being chosen. But Judge Judith  Rogers, dissenting, would have allowed the plaintiff-employee to argue to a jury that the employer’s late-stage identification of a hiring criterion that was not included in the original job listing reflected an attempt to conceal a hiring decision that was infected by racial bias.

Kavanaugh has also written opinions in a number of cases in which he diverged from his colleagues. These fall generally into two categories: first, cases in which Kavanaugh construed the applicable law more narrowly than his colleagues; and second, cases in which Kavanaugh concurred with his colleagues in reversing a grant of summary judgment for an employer, but would have adopted a more bright-line rule about what kinds of incidents can give rise to discrimination suits.

Narrow readings of discrimination law

On three occasions, Kavanaugh disagreed with one or more of his colleagues about the scope of anti-discrimination law. Miller v. Clinton concerned an employee who was fired from his job as a safety inspector at the U.S. embassy in Paris because he reached the age of 65. The State Department did not dispute that account, but argued that the Age Discrimination in Employment Act did not apply to Americans working for the government overseas. Although the ADEA itself does not exempt such workers from its coverage, the government relied on 22 U.S.C. § 2669(c), a provision of the U.S. Code that governs the use of funds by the Secretary of State. That provision states that the secretary may use funds to:

employ individuals or organizations, by contract, for services abroad … and such contracts are authorized to be negotiated, the terms of the contracts to be prescribed, and the work to be performed, where necessary, without regard to such statutory provisions as relate to the negotiation, making, and performance of contracts and performance of work in the United States.

In an opinion by Judge Merrick Garland, the majority held that the most natural reading of this language was as an exemption from certain government-wide procurement regulations, and not from discrimination law. Among other reasons, the majority wrote that the key language had been copied nearly verbatim from an earlier statute, the Foreign Service Buildings Act of 1926, which had been interpreted that way. The majority also thought it unlikely that Congress would exempt a class of employees from anti-discrimination law using such vague language, and viewed the ADEA not as a statute that is “related” to the “performance of work,” but rather as one that bans discrimination on a basis that is “unrelated to the actual performance of work.”

Dissenting, Kavanaugh wrote that Miller’s contract “plainly” fell within the relevant exception because the ADEA “is a ‘statutory provision[]’ that relates to the ‘performance of contracts and performance of work in the United States.’” Kavanaugh viewed this outcome as consistent with congressional policy designed to remove an impediment to hiring U.S. workers – that is, the obligation to comply with laws that would not apply to non-U.S. workers. Kavanaugh also repeatedly took the majority to task, writing that the result was “not a close call,” because the statute was “not remotely ambiguous or difficult to apply in this case.”

In Howard v. Office of the Chief Administrative Officer of the U.S. House of Representatives, the court considered whether the Constitution’s speech or debate clause barred an employment discrimination and retaliation suit against the Office of the Chief Administrator. The majority allowed the suit to proceed, reasoning that the plaintiff’s theory of the case did not require the factfinder to probe the content of speech covered by the clause – that is, “legislative acts or the motivation for legislative acts.” That was because the plaintiff did not dispute the underlying sequence of events that the OCAO stated led to her firing; instead, she simply argued that OCAO used those events as a pretext for firing her because of her race.

In contrast, Kavanaugh would have dismissed the plaintiff’s suit based on the likelihood that in order to defend the case effectively, the OCAO would be “forced to produce [] evidence of legislative activities.” Kavanaugh also implied that discrimination plaintiffs would be better off with no federal case than a limited one: “A plaintiff saddled with a stipulation that she was really lousy at performing her legislative duties is not a plaintiff who is likely to even get to trial, much less to win, in a discrimination case. So the majority’s opinion’s promise of a federal court forum in these circumstances is a fairly empty promise.”

A similar dynamic played out in Rattigan v. Holder, a Title VII case concerning the scope of Department of the Navy v. Egan, which bars courts from reviewing employment actions based on denials or revocations of security clearances. Tatel, writing for the majority, held that Egan applied to decisions by the FBI’s Security Division, but not to line employees’ decisions to transmit knowingly false information to the division. Kavanaugh, however, read Egan to bar all claims related to any aspect of a potential security-clearance revocation, including reporting. Citing separation-of-powers concerns identified in Egan, Kavanaugh urged the government to file a petition for rehearing en banc. (The government later did so, but the petition was denied.)

Events giving rise to discrimination claims

Although the two cases in this section are thematically similar, the first stands out because Kavanaugh identified it in his Senate Judiciary Committee questionnaire as one of the 10 most significant cases in which he participated. In Ayissi-Etoh v. Fannie Mae, the plaintiff alleged multiple instances of employment discrimination and retaliation, including that a company vice president had once yelled at him to “get out of my office n—–.” In a per curiam opinion, the court reversed a grant of summary judgment to the employer, writing that the “get out of my office” comment “might well have been sufficient to establish a hostile work environment,” but that in any event, that incident combined with Ayissi-Etoh’s other allegations certainly did. Kavanaugh concurred, writing that “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment,” because “[n]o other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.”

And in Ortiz-Diaz v. US Department of Housing and Urban Development, Kavanaugh concurred with an opinion by Rogers reversing a grant of summary judgment for the employer. The case turned in part on whether an employer’s refusal to grant a requested job transfer qualified as an adverse employment action that could form the basis of a Title VII lawsuit. Rogers answered that question “yes” under the circumstances of the case, but Kavanaugh wrote separately to suggest that the court should hold in an appropriate case that discriminatory transfers or transfer denials could always qualify as adverse employment actions.

Kavanaugh’s other work-law cases

Finally, Kavanaugh wrote opinions in a handful of important cases that are not easily grouped.

First, Kavanaugh dissented in National Federation of Federal Employees v. Vilsack, a Fourth Amendment challenge to suspicionless drug testing of all employees working at Job Corps Civilian Conservation Centers run by the Forest Service, a unit within the Department of Agriculture. The majority held that the department had failed to identify any particular need for the testing, such as evidence of a drug problem among staff. However, Kavanaugh would have affirmed summary judgment for the employer, writing that “common sense” supported the program because “[i]n residential schools for at-risk youth … it seems eminently sensible to implement a narrowly targeted drug testing program for the schools’ employees. … [I]ndeed, it would seem negligent not to test.” Conversely, Kavanaugh downplayed employees’ privacy concerns about the testing, which he described as entailing “only a urine sample produced in private” that would “reveal[] only whether the employee has used drugs.” (Orin Kerr also wrote about this decision in his post about Kavanaugh’s Fourth Amendment cases, here.)

Second, Kavanaugh has cautioned against finding implicit statutory private rights of action in two cases. In International Union, Security, Police & Fire Professionals of America v. Faye, Kavanaugh dissented from a decision holding that the Labor-Management Reporting and Disclosure Act implicitly creates a private right of action allowing unions to sue officers who breach their fiduciary duties to the union. And he likewise refused to find an implied cause of action in Section 11(c) of the Occupational Safety and Health Act in Johnson v. Interstate Management Co., in an opinion that was unanimous on that point.

Retired Justice Anthony Kennedy was relatively inclined to defer to employers and to interpret work law narrowly. The safe prediction is that, if confirmed, Kavanaugh will do the same, or perhaps take the law in an even more employer-oriented direction. Of course, the usual caveats apply – it is impossible to say with certainty what a justice will ultimately do on the Supreme Court. But Kavanaugh’s opinions to date reflect a general skepticism about agencies or courts second-guessing employers’ decisions, and a lack of skepticism about the employers’ decisions themselves – giving employees and unions cause for concern.

Recommended Citation: Charlotte Garden, Judge Kavanaugh on work law, SCOTUSblog (Aug. 16, 2018, 12:06 PM),