KemLaw

On January 31^st, President Trump nominated Judge Neil Gorsuch from the Tenth Circuit Court of Appeals to the Supreme Court. If confirmed, he would fill the seat previously held by Supreme Court Justice Antonin Scalia.

Gorsuch, a conservative jurist from Colorado – attended Harvard, Columbia and Oxford University. He is considered by most observers to be a thoughtful, conservative judge.

So if confirmed, what impact might his joining the highest court have on employers?

While it’s always difficult to know with certainty, it helps to look at what we know about his judicial record. From that record, it appears that Gorsuch cannot be expected to automatically side with employers on wages or matters pertaining to discrimination – but may be a more reliable ally on curbing the use of class-action lawsuits. He appears to be a fan of arbitration agreements.

Here is a small sample of his judicial record:

• Judge Gorsuch has written a number of opinions that impact federal labor and employment law. He is strongly on record as opposing the McDonnell Douglas framework for shifting the burden of proof in employment discrimination cases.   This framework was originally created for claims alleging discrimination on the basis of race under the Civil Rights Act of 1964. Courts now routinely use it for other employment claims as well. It is unclear what Judge Gorsuch would propose as a replacement.
• In 2013, Judge Gorsuch wrote in support of a decision in Hobby Lobby Stores vs Sebelius which held that closely-held corporations may avoid the contraception provision of the Affordable Care Act on religious grounds.
• He has also been an outspoken critic of the so-called Chevron doctrine. This doctrine holds that when the Congress charges an agency of the executive branch with administering a federal act, courts should defer to that agency’s interpretation of the law. Gorsuch appears to believe this approach inappropriately shields government agencies from appropriate judicial oversight.
• In another matter, just last year the Tenth Circuit Court supported a National Labor Relations Board (NLRB) decision providing an employee-friendly method of calculating back-pay in cases where wages were alleged to have been wrongly reduced. Judge Gorsuch strongly dissented from the majority view – arguing that the NLRB’s method was inconsistent with other methods of calculating back pay.

Do these examples suggest that Judge Gorsuch, if confirmed, would be a jurist friendly to the interests of employers in Connecticut and elsewhere?

Maybe – but only time will tell.

As always, if you have labor or employment law questions we can answer – we hope you will contact us. The attorneys at Kainen, Escalera & McHale do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy.

Photo credit: Senator McCaskill via Foter.com / CC BY-ND

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