Many people across the political spectrum have highlighted the importance of this year’s Presidential election to the future of the Supreme Court. Also at stake in the Presidential election is the composition of the lower federal courts. And since judicial appointments require Senate confirmation, control of the Senate is almost as important as winning the Presidency.
When it comes to the courts, the media has a tendency to focus on gun control, abortion rights, and to a lesser extent, LGBTQ rights. While these issues are important to many voters including workers, the media pays far less attention to a set of issues of major relevance to all workers; namely, worker protection laws. And when it comes to worker protection, it matters enormously which party controls judicial appointments. While there are, of course, plenty of cases where judges appointed by Republican Presidents rule in favor of workers, there are also many close (and sometimes not so close) cases where judges make value judgments, and in doing so, they can either view a case from the perspective of a worker or an employer.
Just in the last month, three appellate judges appointed by George W. Bush, who are on Donald Trump’s list of potential Supreme Court Justices, wrote opinions or dissents in employment law cases that demonstrate the ways that judges can change the law. William Pryor of the Eleventh Circuit recently wrote an opinion rejecting the view the Equal Employment Opportunity Commission has held for nearly 50 years that applicants for employment may raise disparate impact claims under the Age Discrimination in Employment Act (ADEA). In dissent, an Obama appointee, Beverly Martin, pointed out that the statute prohibits employers from taking actions that “would deprive or tend to deprive any individual of employment opportunities,” and Pryor’s opinion rewrote the statute by failing to give effect to that phrase.
In another recent case, Diane Sykes of the Seventh Circuit, ruled that an employee who complained that he was retaliated against for reporting harassment had no claim because he had reported the harassment between two and twelve days after the various incidents, while the employer had instructed him to report harassment “immediately.” The dissenting judge (who was appointed by George H.W. Bush) pointed out that the ruling provided a “free pass” to employers in retaliation claims whenever an employee fails to follow an employer’s strict rules for reporting harassment.
In a third case, the Eighth Circuit considered whether an employee with a disability had made her employer aware of her need for an accommodation. Two of the three judges on the panel (an Obama appointee and a George W. Bush appointee) found that there was enough evidence for a jury to find that she had, but Judge Steven Colloton dissented. According to Judge Colloton, it is “not an onerous burden on the employee” to require an explicit request for an accommodation. But that presumes that workers know their rights, and know the right words or phrases necessary to invoke them.
These cases just represent the tip of the iceberg when it comes to the way judges can affect workers’ rights. Under President Obama, the Department of Labor has issued regulations that extend overtime protections to home health aides and it has raised the salary cap so that employees who are paid $30,000 a year can no longer be classified as “managers” and denied overtime on that basis. Whenever the Department of Labor issues regulations, employers reflexively challenge them in court. When the DOL extended overtime protection to homecare workers, District Court Judge Richard Leon (a Bush appointee) struck down the rule, but his opinion was so indefensible that an ideologically diverse three judge panel overturned it on appeal.
Judges can also make a huge difference in shaping federal labor law. In two recent cases, one in the Fifth Circuit, and another in the Sixth Circuit, panels of three Republican judges overturned the NLRB and found that employer lockouts were legal. The lockout is an extremely powerful weapon in bargaining, and allowing employers to use lockouts in more circumstances places workers in a weaker bargaining position.
When working class voters cast their ballots for Republicans, they probably aren’t seeking judges who will favor corporations over workers, but, as these cases show, that is often what they get.