Is Garland a Good Bet for Employees?

On March 16, 2016, President Obama announced his nomination for Supreme Court justice: current D.C. Circuit Judge Merrick Garland. By now we know the basics about Judge Garland, but what is his record regarding the rights of employees?

As one Supreme Court blogger noted back in 2010, Judge Garland’s spot on the D.C. Circuit—where regulatory matters reign—means he hasn’t weighed in on as many employment or civil rights cases as you might think. His overall record, however, reveals a tendency to side with employees. In the 1998 case, Kolstad v. American Dental Association, for example, Judge Garland dissented from an en banc opinion applying a heightened “egregiousness” standard to Title VII punitive damage claims. The Supreme Court later agreed with Judge Garland and reversed the majority’s decision.

In his later years on the bench, Judge Garland also tended to side with employees. We surveyed opinions he’s authored on employment issues since 2010. There appears to be 9 published opinions, in which he sided (or partially sided) with the employee 7 times:

  • Payne v. Salazar, 619 F.3d 56, 66 (D.C. Cir. 2010) – reversing dismissal of Title VII retaliation claim and finding that employee could select which claims she brought to court after exhausting her administrative remedies.
  • Mogenhan v. Napolitano, 613 F.3d 1162, 1168 (D.C. Cir. 2010) – reversing summary judgment on Secret Service employee’s retaliation claim where employer posted her EEO complaint on the employer’s intranet after it was filed and significantly increased her workload.
  • Peterson v. Archstone Communities LLC, 637 F.3d 416, 420 (D.C. Cir. 2011) – reversing dismissal of a pro se plaintiff’s age discrimination claims and finding that her failure to appear at a motions hearing did not warrant dismissal.
  • Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012) – reversing dismissal of age discrimination claim for State Department employee who was fired on his 65th birthday, and finding that the Foreign Service’s mandatory retirement provision was not an exception to the Age Discrimination in Employment Act.
  • Harris v. D.C. Water & Sewer Auth., 791 F.3d 65 (D.C. Cir. 2015) – reversing the dismissal of a long-term government employee’s Title VII and §1981 retaliation claims, finding that his complaint sufficiently alleged causation.

Running straight through these cases is a clear emphasis on protecting employees’ day in court. Accordingly, it appears a Judge Garland confirmation would be a step forward in making the highest court in the land a friendlier place for the little guys.