This post is part of an ongoing series on the labor decisions and positions of some of the likely potential picks to replace Justice Scalia on the Supreme Court.
Neil Gorsuch currently serves as a judge on the United States Court of Appeals for the 10th Circuit. He was appointed by President George W. Bush on May 10, 2006 and confirmed just over two months later. As SCOTUSblog and numerous other outlets have pointed out, Judge Gorsuch may be “the most natural successor” to Justice Scalia, “both in terms of his judicial style and his substantive approach.”
Last August, Judge Gorsuch “made real waves in the normally sleepy world of administrative law” by advocating the end of the doctrine of Chevron deference. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th Cir. 2016) (Gorsuch, J., concurring). Writing a separate concurrence to his own opinion, Judge Gorsuch opined, “We managed to live with the administrative state before Chevron. We could do it again. Put simply, it seems to me that in a world without Chevron very little would change – except perhaps the most important things.” Id.
The following provides an overview of Judge Gorsuch’s opinions in cases involving the NLRB and employment discrimination.
Jonathan R. Harkavy, a lawyer, arbitrator and mediator, has taught labor and employment law at Wake Forest School of Law and corporate finance at Duke Law School and the University of North Carolina at Chapel Hill School of Law. He has written and lectured widely on employment law and alternative dispute resolution.
Citing the plight of employees ranging from female Goldman Sachs bankers to African-American Taco Bell restaurant workers, The New York Times lamented earlier this year that a double whammy of compelled arbitration and class action waivers is effectively disabling employees from enforcing their statutory rights. Around the same time, Senators Leahy, Franken and others introduced legislation to limit forced individual arbitration of various employment and consumer disputes. (S.2506 – Restoring Statutory Rights and Interests of the States Act of 2016) That legislation has promptly gone nowhere. But, are the Times’ lament and the proposed legislation necessary to protect class litigation of Title VII claims? Maybe not, if the Supreme Court heeds its own words.
Common wisdom has it that, in the wake of AT&T Mobility, LLC v. Concepcion and American Express Co. v. Italian Colors Restaurant, the Court effectively foreclosed class arbitration of consumer and employment claims. To be sure, Italian Colors enforced a class arbitration waiver in an agreement used by American Express with merchants who honor its charge cards. Justice Scalia’s opinion for the Court concluded that the Federal Arbitration Act’s mandate to enforce arbitration agreements according to their terms required upholding the waiver in the absence of a “contrary congressional command.” Moreover, Justice Scalia noted that the antitrust laws on which the merchants’ claim was based “do not guarantee an affordable procedural path to the vindication of every claim.” But Title VII does for employees what the antitrust laws failed to do for merchants: It provides an affordable procedural path for vindicating every employment discrimination claim and thus supplies the “contrary congressional command” missing in Italian Colors.
Look first at a rarely-cited obscurity in the Civil Rights Act of 1964 – one that has largely been ignored by judges and lawyers alike. Sections 706(f)(4) and (5) require that Title VII suits – alone among other civil actions – are to be expedited and advanced on the district courts’ dockets, even to the point of using Circuit Judges as trial judges and appointing special masters under Rule 53 to ensure prompt trials. Also, section 706(f)(1) commands that in appropriate cases an employee need not pay a filing fee, need not pay costs and need not advance security to vindicate her rights. Trial judges may also appoint counsel for employees and permit intervention by the EEOC or the Attorney General. Congress has thus singled out Title VII claims for expedited and affordable treatment.
Months after reaching a 4-4 tie in Friedrichs v. California Teachers Association, the Supreme Court has denied the petitioners’ request for a rehearing. The Court waited until its final conference of the Term to vote on the petition, after postponing its decision eight times since April. No opinion was included with the Court’s denial.
While today’s announcement effectively brings the case to a close, the questions presented by Friedrichs — (1) whether Abood v. Detroit Board of Education should be overruled and public-sector “fair share” arrangements invalidated under the First Amendment, and (2) whether it violates the First Amendment to require that public employees affirmatively opt out of subsidizing nonchargeable speech by public-sector unions — may be litigated again and brought back before a (presumably full) Court in the future.
After the passing of Justice Antonin Scalia earlier this year, many rushed to evaluate his legacy (for good or for bad). While Justice Scalia’s missing vote in Freidrichs v. California Teachers Association drew a great deal of immediate attention, few discussed the lasting impact of his decisions on employment law. In this realm, one of the most frequent criticisms of Justice Scalia’s jurisprudence was that his decisions tended to restrict plaintiffs’ rights (such as Wal-Mart v. Dukes). However, in Oncale v. Sundowner Offshore Services, Inc., Justice Scalia actually extended Title VII protections to cover same-sex sexual harassment claims.
When the Oncale decision was announced in 1998, it was widely praised for sending a message that ”male or female, gay or straight, nobody should have to face sexual harassment when they go to work in the morning.” In reality, the decision only had a limited immediate impact, and became more notable for what it did not do. Since Oncale, lower courts repeatedly interpreted the decision as a bar to Title VII claims on the basis of sexual orientation. Now, years later, many, including the EEOC, believe Oncale actually opened the door to further expansions of Title VII protections.
The petitioners in Friedrichs v. California Teachers Ass’n have formally submitted a request for reargument to the Supreme Court, reports Lyle Denniston of SCOTUSblog. Specifically, the petitioners ask the Court to “rehear [Friedrichs] after it obtains a full complement of Justices capable of reaching resolution by a five-Justice majority.” They argue that the case presents questions of “profound nation wide importance” and that “[t]here is a circuit split over certain aspects of [California’s public-sector agency-fee scheme], and similar schemes affect tens of thousands of public employees every year.” The petitioners also note that “there are multiple cases pending in the lower courts that implicate the Questions Presented,” and suggest that “[r]ather than defer this issue for resolution in some future case at some future time, the better and more efficient course would be to hold the case this Court has already agreed to decide until it is capable of issuing a decision.”
However, Denniston observes that “[p]ersuading the Court to grant rehearing is a difficult proposition as a general matter,” and “is made more difficult by the specific requirements that the Court’s rules outline for action on such a request”:
Rehearing can only be granted, following such a request by lawyers in a case, if that request has the support of at least one Justice who had voted for the result for which a rehearing is being sought. And rehearing can be granted only if a majority of the Court votes in favor of doing so.
With only an eight-Justice Court, however, it is not entirely clear which group of Justices on opposite sides of a four-to-four split would be the ones eligible to call for rehearing in response to a lawyer’s request. Both blocs in such a tied situation may be said to have voted for the result — that is, disposing of the case because it could not assemble a majority.
As for the impact of the confirmation of a new Justice while the rehearing petition is under consideration, Denniston notes that “it has been the customary practice that the new member would not vote on whether to grant rehearing but — if rehearing were to be granted — could then take a full part in the process.”