The Senate is gearing up to consider President Trump’s nomination of Judge Brett Kavanaugh as an Associate Justice of the Supreme Court to replace Justice Kennedy. While employment law is not likely to be the center of his confirmation hearings, many employers will be watching to see how Judge Kavanaugh’s appointment may impact employment cases that come before the Supreme Court. A review of Judge Kavanaugh’s employment law decisions during his time on the U.S. Court of Appeals for the D.C. Circuit suggests that although he sometimes sides with employees, he would be an employer-friendly addition to the Supreme Court.
Judge Kavanaugh’s Employment Record is Mixed on Discrimination and Harassment Issues
As illustrated by the below cases, Judge Kavanaugh is generally employer-friendly in discrimination, harassment and retaliation cases.
- No Retaliation in OSHA. In Robert Lee Johnson v. Interstate Mgmt. Co. LLC, 849 F.3d 1093 (D.C. Cir. 2017), Judge Kavanaugh wrote the opinion affirming the district court’s dismissal of an employee’s retaliation claim. The employee was fired from his job as a hotel cook due to unsanitary kitchen practices. The employee alleged he was actually terminated in retaliation for complaining to the Occupational Safety and Health Administration (“OSHA”) about allegedly unsafe workplace conditions at the hotel. Affirming the dismissal, Judge Kavanaugh turned to the text of the statute and reasoned that OSHA does not expressly grant employees a private cause of action for retaliation claims.
- Discrimination Overseas. In Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012), Judge Kavanaugh wrote a textualist dissent in a case involving a State Department employee who alleged he was wrongfully terminated because he had turned 65 years old, in violation of the Age Discrimination in Employment Act (“ADEA”). The majority, authored by Judge Merrick Garland, held that the ADEA applied to the State Department. Judge Kavanaugh’s dissent stressed that federal law expressly allows the State Department to contract with American workers in foreign locations without regard to statutory provisions relating to employment contracts in the United States, including the ADEA. In a footnote, Judge Kavanaugh questioned whether the ADEA has extraterritorial application at all, noting that it may not given the longstanding presumption against extraterritorial application of statutes.
- McDonnell Douglas Burden Shifting. In Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008), Judge Kavanaugh authored the opinion for a unanimous...
