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On January 31, President Trump nominated Judge Neil Gorsuch from the Tenth Circuit Court of Appeals to fill the Supreme Court seat previously held by the late Justice Antonin Scalia.  Judge Gorsuch is known as a conservative, a textualist, and a talented writer—much like Justice Scalia.  So, what effect would a Justice Gorsuch have on employers?

Labor & Employment Record

Judge Gorsuch has penned a number of opinions that directly affect federal labor and employment law. Most notably, he has repeatedly voiced disapproval of McDonnell Douglas, a framework for shifting the burden of proof at the summary judgment stage of employment discrimination cases. Under McDonnell Douglas, an employee must set out certain circumstantial evidence of discrimination, which then shifts the burden to the employer to show non-discriminatory intent, which in turn shifts the burden back to the employee to show that the employer’s stated intent was pretextual.  This framework is a cornerstone of employment discrimination procedure, and it remains unclear what alternative framework Judge Gorsuch would prefer.

In 2016, the Tenth Circuit upheld an NLRB decision providing for an employee-friendly method of calculating backpay where unionized employees’ hours were wrongly cut.  Judge Gorsuch dissented, arguing that this method was unjustifiably inconsistent with the methods used for calculating backpay in other contexts.

Judge Gorsuch also wrote a concurrence in Hobby Lobby Stores, Inc. v. Sebelius, which permitted closely-held corporations to avoid the Affordable Care Act’s so-called “contraceptive mandate” on religious grounds.  When that case was appealed to the Supreme Court, the Gorsuch concurrence served as a model of sorts for Justice Alito’s majority opinion, which held that forcing such companies to provide contraceptive coverage to employees violated the Religious Freedom Restoration Act.

A Critic of Agency Deference

One of the most remarkable aspects of Judge Gorsuch’s record is his sharp criticism of “Chevron” Under the Chevron doctrine, when Congress charges an executive agency with administering a federal statute, courts should generally defer to the agency’s interpretation of the statute. In the labor and employment context, this means that regulations adopted by the Department of Labor and decisions by the NLRB are given substantial deference by federal courts, and are sometimes upheld even when they rely on an arguably strained reading of the law.  Justice Scalia generally supported this deferential approach, so his replacement by Judge Gorsuch could signal to a swing away from Chevron and its progeny.  Such a swing could lead to more employer-friendly results, as agencies’ interpretations often favor employees.

Along similar lines, it is noteworthy that the House of Representatives recently passed the Regulatory Accountability Act of 2017, which would substantially limit Chevron deference and could have the same employer-friendly effect.  The bill currently sits before the Senate Committee on Homeland Security and Governmental Affairs, awaiting further action.

Looking Ahead

On January 13, the Supreme Court granted certiorari in National Labor Relations Board v. Murphy Oil USA, Inc., an appeal from a Fifth Circuit ruling that permits class action waivers in employee arbitration agreements.  Judge Gorsuch has not yet had occasion to rule on this issue, though his reputation as a relatively business-friendly judge might reasonably indicate that he would vote to affirm the Fifth Circuit’s decision and uphold employers’ use of class action waivers.  You can read more about the case here.

Of course, it is impossible to say with certainty how a Justice Gorsuch would vote in Murphy Oil, assuming he is confirmed, and harder still to say what other issues would come before the Supreme Court during his tenure.  Issues that appear primed for review include whether sex discrimination protections should be extended to cover sexual orientation, and whether unions can compel non-members to pay dues.  In any event, the Judge’s record while serving on the Tenth Circuit suggests that he might be more friend than foe to employers.