Gorsuch’s Judicial Approach and Workplace Protection

Published February 7th, 2017 -  - 02.07.1718


When Judge Neil Gorsuch accepted his nomination to the Supreme Court, he professed modesty about his role on the Court, if he is confirmed.  He proclaimed that it is the role of judges to “apply not alter the work of the people’s representatives.”  But, unfortunately, Judge Gorsuch’s record casts serious doubt on whether he would truly respect the role of Congress when it comes to drafting legislation that protects the well-being of the American people.  A recent case involving a truck driver who was fired for leaving his load to take refuge after waiting two and a half hours without heat on a sub-freezing night illustrates how Judge Gorsuch’s approach to the law would endanger workers and the public.

For 150 years, Congress has drafted remedial legislation with the understanding that the courts would liberally construe the provisions of the laws to accomplish their ends.  Here’s what Representative Samuel Shellabarger, the author and manager of the 1871 Civil Rights Act said regarding that Act: “This act is remedial, and in aid of the preservation of human liberty and human rights.  All statutes and constitutional provisions authorizing such statutes are liberally and beneficially construed.  It would be most strange, and in civilized law, monstrous were this not the rule of interpretation.  As has been again and again decided by your own Supreme Court of the United States … the largest latitude consistent with the words employed is uniformly given in construing such statutes….”

Nor was that just the wishful thinking of a legislator.  Even in 1930, during the height of what we refer to as the Lochner era, a unanimous Supreme Court acknowledged that the Federal Employers’ Liability Act (FELA), a law designed to protect injured workers, was “to be construed liberally to fulfill the purposes for which it was enacted.”  Thus, the Court held that even though the statute only imposed liability on railroads for injuries that resulted from the “negligence” of the railroad’s agents or employees, it was proper to impose liability where a foreman assaulted a worker.  The Court explained that since the employer would clearly be liable if the worker’s injuries “had been caused by mere inadvertence or carelessness on the part of the offending foreman it would be unreasonable and in conflict with the purpose of Congress to hold that the assault, a much graver breach of duty, was not negligence within the meaning of the Act.”

More recently, in 1980, in a case interpreting the Occupational Safety and Health Act, a unanimous Court held that “safety legislation is to be liberally construed to effectuate the Congressional purpose.”  So, when Congress passed the Surface Transportation Assistance Act in 1982 (“STAA”), which protects truck drivers who “refuse to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of a vehicle’s hazardous safety or security condition,” it was acting against this backdrop.  In other words, Congress did not need to specifically anticipate and address every conceivable fact-pattern that might arise because Congress expected both the Department of Labor and the courts to liberally construe this provision to protect workers and the public.  But, this is where Judge Gorsuch comes in.

Last year, Judge Gorsuch sat on a three-judge panel that considered the application of the STAA.  Alphonse Maddin was driving a tractor-trailer truck on a cold January night when, after a brief stop, he discovered that the brakes on his trailer had frozen and locked up.  Maddin reported the frozen brakes to his employer and waited for a repair truck.  As it turned out, the heat in the truck’s cab stopped working as well.  Two hours later Maddin called his employer again, reporting that he was having trouble breathing, his torso was numb, and he could not feel his feet.  After another half-hour, Maddin unhitched the trailer, and drove off in the cab.  When a repair truck finally arrived, Maddin drove back to meet with the repairperson, but his employer still fired him for temporarily abandoning his load.  A Department of Labor Administrative Law Judge, the Department’s Administrative Review Board, and two of the three judges on the panel had no trouble concluding that the employer’s actions violated the STAA.  But, not Judge Gorsuch.

Judge Gorsuch would have overturned the ruling of the Department of Labor, because in his mind Maddin wasn’t fired for “refusing to operate” his vehicle.  To support his argument, Judge Gorsuch turned to a dictionary, which defined “operate” as “to cause or actuate the working of.”  But, the two judges in the majority pointed to another dictionary definition of operate: “to control the functioning of,” and under this definition, Maddin was refusing to operate his vehicle.  The majority also pointed out that Congress chose the word “operate” rather than the narrower term “drive.”  Furthermore, the majority noted that the STAA was enacted to “promote the safe operation of commercial motor vehicles,” and “to minimize dangers to the health of operators of commercial motor vehicles, and the Department of Labor’s interpretation furthers those goals.

If Judge Gorsuch gets his way, instead of enacting broadly worded protections for workers and the public, Congress would need to draft laws that anticipate every circumstance that might come to pass.  This is a recipe for legislative paralysis.  And perhaps more importantly, Gorsuch would apply this new standard retroactively, upsetting the expectations of Congress when it enacted civil rights, worker protection, and health and safety legislation.  No Senator should vote for a Supreme Court nominee who is not willing to commit to liberally construing remedial legislation.  This may sound like dry legalese, but it will make all the difference in the world to workers like Alponse Maddin, whose employers seem to care more about protecting their goods than protecting the health and safety of their employees.

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