On January 31, President Trump announced that his U.S. Supreme Court nominee is Neil Gorsuch. Judge Gorsuch sits on the U.S. Court of Appeals for the Tenth Circuit. If confirmed, he would fill Justice Antonin Scalia’s seat.
Judge Gorsuch authored a dissenting opinion that exemplifies how he will likely affect employment law decisions if he is confirmed to the U.S. Supreme Court. The dissent is from the case Transam Trucking, Inc. v. Admin. Review Bd. (10th Cir., 2016).
The plaintiff, Alphonse Maddin, was employed as a truck driver by TransAm Trucking (“TransAm”). In January 2009, Maddin was transporting cargo when the brakes on his trailer froze because of subzero temperatures. Judge Gorsuch explained that Maddin called TransAm for help and “someone there gave him two options. He could drag the trailer carrying the company’s goods to its destination (an illegal and maybe sarcastically offered option). Or he could sit and wait for help to arrive (a legal if unpleasant option).” Madden, however, chose to unhook the trailer and drive his truck to a gas station. In response, TransAm fired him for disobeying orders and abandoning its trailer and goods.
Both an administrative law judge (“ALJ”) and Department of Labor (“DOL”) Administrative Review Board concluded Maddin was terminated in violation of the whistleblower provisions of the Surface Transportation Assistance Act (“STAA”). He was ordered reinstated with backpay. TransAm filed a Petition for Review of the Review Board’s Final Decision and Order, which Judge Gorsuch’s colleagues denied.
In dissenting, Judge Gorsuch clarifies that he would have reversed and found for the employer, TransAm. His dissent also offers these insights into what a Justice Gorsuch will bring to the Supreme Court.
Judge Gorsuch is a textual literalist
First, much like Justice Scalia, Judge Gorsuch is likely to be a textual literalist with statutory enforcement. Consider for example this dissent:
The Department of Labor says that TransAm violated federal law … But that statute only forbids employers from firing employees who “refuse to operate a vehicle” out of safety concerns … The trucker in this case wasn’t fired for refusing to operate his vehicle. Indeed, his employer gave him the very option the statute says it must: once he voiced safety concerns, TransAm expressly — and by everyone’s admission — permitted him to sit and remain where he was and wait for help. The trucker was fired only after he declined the statutorily protected option (refuse to operate) and chose instead to operate his vehicle in a manner he thought wise but his employer did not. And there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid. Maybe the Department would like such a law, maybe someday Congress will adorn our federal statute books with such a law. But it isn’t there yet. And it isn’t our job to write one — or to allow the Department to write one in Congress’s place.
Judge Gorsuch’s colleagues believed the subject statute, if not expressly, was intended to and afforded the protections received by the trucker, even if not expressly so noted in the statute.
Not Inclined to Second-Guess an Employer’s Business Judgment.
Second, Judge Gorsuch is likely to give substantial deference to an employer’s business judgment. Here is what he had to say on this issue in the TransAm case:
It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.
Judge Gorsuch reached a similar conclusion in a 2012 case involving a religious discrimination claim brought by a former employee who believed his employer discriminated against him because he was a Muslim. In the case, Kaiser v. Colorado Dept. of Corrections (504 Fed. App’x 739), Judge Gorsuch upheld the dismissal. In doing so, he wrote, “it is not our function under the federal discrimination laws to tell employers how best to go about their jobs … maybe others would have gone about the job differently than [the terminating supervisor] did,” but that was not for the court to decide.”
Not a Fan of Giving Judicial Deference to Administrative Agencies
Third and perhaps the area where a Justice Gorsuch will have the most impact on employment law decisions relates to how much deference will be afforded to agencies responsible for enforcing such laws.
This is because Judge Gorsuch is a vocal critic of giving undue judicial deference to administrative agencies. This deference is often called Chevron deference from the case Chevron Inc v. Natural Resources Defense Council, Inc. (1984). Under the Chevron principle, courts defer to an agency’s interpretations if a law’s language is ambiguous, the agency has Congressional authority to issue regulations interpreting the law and the interpretation is reasonable. Chevron deference is the highest level of deference a court can give.
However, Judge Gorsuch considers the Chevron doctrine as putting too much judicial and legislative authority in executive agencies. He succinctly explained his criticism in an August 2016 concurring opinion in Gutierrez-Brizuela v. Lynch (10th Cir., 2016), a non-employment immigration case against the federal government. According to Judge Gorsuch, the Chevron standard,
permits executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.
This animosity towards giving agencies like the Equal Employment Opportunity Commission (EEOC), the Department of Labor, or the National Labor Relations Board too much deference will likely benefit employers who must navigate an increasingly complex web of regulations and interpretations.
Gorsuch’s views on deference could be critical to the outcome of cases involving the EEOC interpretations, NLRB, and Labor Department rulemaking that are presently making their way through the circuit courts right now. Of particular concern, Of particular concern, however, is what deference would a Justice Gorsuch give to the EEOC’s interpretation that Title VII’s sex bias prohibition includes sexual orientation discrimination. The EEOC has claimed that it does and this issue is pending before multiple federal appeals courts.
The Senate is expected to hold confirmation hearings for Judge Gorsuch in late March or early April. Thereafter and barring no filibuster or other procedural delays, the full Senate would likely immediately vote on whether to confirm Judge Gorsuch.