Brett Kavanaugh: Dangerous Precedent

This article is a follow-up to our previous post about the nomination of Brett Kavanaugh to the United States Supreme Court. It provides an in-depth analysis of a number of Judge Kavanaugh’s employment law decisions.

In 2006, President George W. Bush appointed Judge Kavanaugh to the United States Court of Appeals, District of Columbia Circuit. Since then, Judge Kavanaugh has written many opinions for that court, as well as dissents and concurrences. These opinions give us a glimpse of how Judge Kavanaugh would likely rule as justice on the U.S. Supreme Court. Judge Kavanaugh’s record on employment law is cause for concern: he has consistently favored employers’ defenses over employees’ claims of discrimination and he has frequently refused to allow employees to try their claims to a jury.

In a 2007 race discrimination case, Judge Kavanaugh deferred to an employer that considered qualifications outside the job description to promote a white woman instead of an African-American employee.[1] Kavanaugh improperly focused on whether the white employee was “better qualified” rather than other indicia of discrimination. He asserted that the judiciary should not be “a super-personnel department that reexamines an entity’s business decisions,” a proposition often used to defend employers against employment discrimination claims.[2] Ultimately, he prevented the plaintiff from receiving a jury trial.

Judge Kavanaugh’s colleague, Judge Rogers, rightfully dissented, reasoning that the plaintiff’s appeal did “not ask the court to micromanage a personnel decision,” but instead “present[ed] a question that goes to the heart of Title VII and the federal justice system.”[3] He criticized the majority for ignoring this fact. He correctly stated that “courts cannot ignore, in determining whether summary judgment is appropriate, evidence that raises a material question of fact and be so deferential as to allow employers to mask unlawful discrimination with post-hoc justifications for employment decisions.”[4] Alarmingly, that is exactly what Judge Kavanaugh did in this opinion.

When a Bureau of Indian Affairs water rights specialist claimed age, race, and disability discrimination, Judge Kavanaugh ruled for the employer on all counts.[5] Here, the employee, a man of over 70 years of age, was aggressively berated and disciplined by his supervisor. In rejecting the hostile work environment claim, Kavanaugh argued that “none of the comments or actions directed at [the plaintiff] expressly focused on his race, religion, age, or disability – unlike in some hostile work environment cases.”[6] This comment is troubling because employees have the right to support race and disability discrimination claims with circumstantial evidence that does not directly show, but raises an inference of, discriminatory animus. Furthermore, Judge Kavanaugh failed to view the evidence in the light most favorable to the plaintiff, which was required under law in this summary judgment request by the employer.

In denying the hostile work environment claim, he argued that the “claims of harm are not supported by evidence of tangible workplace consequences.”[7] This is concerning commentary because it contravened established law: hostile work environment claims under Title VII are not limited to economic or tangible discrimination, but rather include “the entire spectrum of disparate treatment.”[8] As a result of Judge Kavanaugh’s reasoning, this employee was denied an opportunity to try his claims to a jury.

In 2008, Judge Kavanaugh dismissed an employee’s race discrimination claim.[9] In this case, the employer claimed it demoted the plaintiff, an African-American man named Brady, because he grabbed his crotch in front of three employees in violation of the sexual harassment policy. Brady alleged that he was demoted because of his race. Of the three employees who accused him of improper behavior in the workplace, two said that Brady grabbed his crotch while discussing his need to use the restroom. The other accuser, after being required to give a statement during an investigation, said that Brady “did not present any offensive actions towards [her]” and had acted “in a very joking manner.”[10]

Judge Kavanaugh overlooked these crucial facts and entirely deferred to the employer’s proffered reason for demotion. He asserted, “The question is not whether the underlying sexual harassment incident occurred; rather the issue is whether the employer honestly and reasonably believed the sexual harassment occurred.”[11] This “honest belief” reasoning plainly favors employers at the expense of employees because it undermines the ability of plaintiffs to prove that the employer’s given reason is pretext for discrimination.

Three years after this case, the Supreme Court held that an employer may be liable for employment discrimination based on the discriminatory intent of a supervisor who influenced, but did not make, the ultimate employment decision.[12] This holding, at odds with the “honest belief” reasoning, is the controlling standard and must remain the law if employees are to have a fair chance to prove they have been subject to discrimination.

Also, in 2008, Judge Kavanaugh sided with an employer public school system that refused to hire a hearing-impaired applicant for an information technology position.[13] In this case, the Judge Kavanaugh held that the school district’s reason—the hired applicants were “better qualified”—was not pretext for disability discrimination.[14]

In 2010, Judge Kavanaugh affirmed the dismissal of an employee’s disability discrimination claim. He held that the employee did not sufficiently notify the employer of her mental disability and the employer did not deny the employee’s request for a reasonable accommodation.[15]

In 2011, Judge Kavanaugh ruled in another employer’s favor in a race and gender discrimination case.[16] He held that a CEO’s reason for termination of his assistant—“incompatible work styles”—was not pretext for race and gender discrimination.[17] Judge Kavanaugh asserted that the fact that the CEO himself hired the employee less than a year before her termination was “probative evidence” that the CEO did not dismiss her for discriminatory reasons.[18] This type of reasoning is often used as a defense and rests on the faulty assumption that a person could not hire an employee and then later discriminate against them because of their gender or race. As we know, discriminatory bias cannot be ruled out so simply.

Last year, Judge Kavanaugh dismissed an employee’s retaliation claim and shut the door on a potential employment discrimination cause of action.[19] An employee claimed that his employer terminated him in retaliation for complaining to the Occupational Safety and Health Administration (OSHA) and for making an employment discrimination claim to the Equal Employment Opportunity Commission (EEOC). Judge Kavanaugh held that the employer’s given reason for terminating the employee—a violation of health codes—was not unlawful.[20] Kavanaugh also ruled that there is no private cause of action under the Occupational Safety and Health Act. This means that employees cannot protect themselves through a cause of action if their employer retaliates against them for reporting to OSHA, and thus curtails employees’ access to justice.

In recent years, Judge Kavanaugh has written a handful of concurring opinions on employee-friendly decisions.

In a 2017 case, a government employee claimed that his supervisor’s refusal to transfer him constituted race and national origin discrimination.[21] The D.C. Circuit held that this refusal to transfer could qualify as an adverse employment action and allowed the employee’s discrimination claims to stand.[22] Judge Kavanaugh wrote a concurrence stating that the court should go further and establish that “all discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII,” a federal anti-discrimination law.[23] While this is an admirable concurrence, this may be the only opinion in which Judge Kavanaugh truly attempts to ensure fairness for employees.

In 2013, Judge Kavanaugh wrote a concurrence addressing a hostile work environment claim.[24] In this case, a former employee, who is African-American, alleged that the company’s Chief Audit Executive explicitly denied him a raise, saying, “For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money.” Furthermore, the plaintiff alleged that the Vice President of Internal Audit yelled at him, “get out of my office, n*****.” Judge Kavanaugh agreed with the court’s opinion but wrote separately to underscore that the yelled epithet “by itself would establish a hostile work environment” under federal anti-discrimination law.[25] Judge Kavanaugh’s opinion can be viewed with skepticism, however, considering his prior opinions affirming the dismissal of cases without direct evidence. It appears that Kavanaugh tends to only recognize discrimination, or even allow an employee to attempt to prove discrimination to a jury, when the evidence of discrimination is painfully direct.

Throughout his tenure on the D.C. Circuit, Judge Kavanaugh has regularly ruled in favor of employers at the expense of employees. Attorneys who represent employees and employers have spoken to this point.[26] His opinions suggest that by deferring to employers, he might not be fair to employees if confirmed to the U.S. Supreme Court. Given his use of employer-favoring doctrines, he could change the trajectory of federal employment law. His opinions do not give hope that he will be a strong protector of federal anti-discrimination law. At worst, his nomination presents a threat to employees’ right to be free from unlawful discrimination in the workplace.

[1] Jackson v. Gonzales, 496 F.3d 703 (D.C. Cir. 2007).
[2] Id. at 707 (citing Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006)).
[3] Id. at 709 (D.C. Cir. 2007) (Rogers, J., dissenting).
[4] Id. at 125 (Rogers, J., dissenting) (emphasis added).
[5] Baloch v. Kempthorne, 550 F.3d 1191 (D.C. Cir. 2008).
[6] Id. at 1201 (emphasis added).
[7] Id.
[8] Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993)
[9] Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008).
[10] Id. at 492.
[11] Id. at 495–96 (D.C. Cir. 2008) (citing George, 407 F.3d at 415; Fischbach, 86 F.3d at 1183) (emphasis added).
[12] See Staub v. Proctor Hosp., 562 U.S. 411, 417, 131 S. Ct. 1186, 1191, 179 L. Ed. 2d 144 (2011).
[13] Adeyemi v. District of Columbia, 525 F.3d 1222 (D.C. Cir. 2008).
[14] Id.
[15] Stewart v. St. Elizabeths Hospital, 589 F.3d 1305 (D.C. Cir. 2010).
[16] Vatel v. All. of Auto. Mfrs., 627 F.3d 1245 (D.C. Cir. 2011).
[17] Id.
[18] Id. at 1247.
[19] Johnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093 (D.C. Cir. 2017).
[20] Id. at 1097.
[21] Ortiz-Diaz v. United States Department of Housing & Urban Development, Office of Inspector General, 867 F.3d 70 (D.C. Cir. 2017).
[22] Id.
[23] Id. at 81.
[24] Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013).
[25] Id. at 579-80.
[26] Erin Mulvaney, “Brett Kavanaugh ‘Looks for Ways to Rule for Employers,’” (Accessed August 10, 2018); Fisher Phillips Legal Alerts: Will SCOTUS Justice Kavanaugh Treat Employers Well? The Magic 8-Ball Says: “You May Rely On It,” (Accessed August 10, 2018); Kenneth Quinnell, “Trump’s Supreme Court Nomination of Brett Kavanaugh Is Deeply Troubling,” (Accessed August 10, 2018