President Trump nominated Judge Neil Gorsuch to fill the vacant seat on the Supreme Court (SCOTUS) bench on January 31, 2017. Employers are wondering how Judge Gorsuch will treat workplace cases that come before the Supreme Court should he be confirmed.
Who is Neil Gorsuch?
Judge Gorsuch graduated from Columbia University in 1988 and Harvard Law School in 1991. He then went on to clerk for Supreme Court justices Byron White and Anthony Kennedy before joining a Washington D.C. firm for about ten years. Judge Gorsuch currently serves as a judge on the United States Court of Appeals for the 10th Circuit. He was appointed on May 10, 2006 by President George W. Bush. Some employers have compared Judge Gorsuch to the late Justice Scalia “both in terms of his judicial style and his substantive approach.” He has participated in hundreds of decisions, including labor and employment cases.
Judge Gorsuch and the NLRB
While Judge Gorsuch has shown himself to be largely employer friendly, he has consistently upheld decisions issued by the National Labor Relations Board (NLRB). Some decisions have been anti-union and some have been anti-employer so it is hard to note a true pattern of ideals when it comes to this arena. Judge Gorsuch has issued the majority opinion in three cases involving the NLRB: Teamsters Local Union No. 455 v. N.L.R.B., 765 F.3d 1198 (10th Cir. 2014), Pub. Serv. Co. of N.M. v. N.L.R.B., 692 F.3d 1068 (10th Cir. 2012), and Laborers’ Int’l Union of N. Am., Local 578 v. N.L.R.B., 594 F.3d 732 (10th Cir. 2010). Judge Gorsuch ruled in favor of the NLRB on one of those cases and the other two he sided with the unions. In the 2010 decision, Judge Gorsuch sided with the NLRB stating that the union committed unfair labor practices when it persuaded an employer to fire an employee for failing to pay his union dues.
Judge Gorsuch and Employment Discrimination
Between 2007 and 2016, Judge Gorsuch issued the majority opinion in 14 published employment discrimination cases: 9 were favorable to the employer, 3 were favorable to the employee and 2 were partial affirmances and partial reversals of the district court and, thus, had both favorable and unfavorable effects for both employer and employee. In Roberts v. International Business Machines Corp. (2013), the plaintiff brought age discrimination charges after finding instant messages between his supervisors questioning his “shelf-life” right before he was terminated. After further investigation, it was discovered that the IM conversation “was nothing worse than an inartful reference” to the plaintiff’s work productivity drying up. The case was dismissed.
The Majority Opinion = Employer Friendly
Many believe that employers should be comforted by the nomination of Judge Gorsuch. Gorsuch’s conservative legal philosophy has won praise from business groups that want to rein in government regulation and limit the rights of labor unions. Gerald Maatman, a labor attorney based in Chicago stated in the NY Times, “I think employers have a supporter with this particular nominee who is unwilling to go along with agencies just because they interpret the law in a certain way.”
Sources: lexology.com; nyt.com; chicagotribune.com; onlabor.org
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