David W. Garland, Member of the Firm and Chair of the firm’s National Employment, Labor & Workforce Management Steering Committee, authored an article in Law360, titled “Searching for Clues in Kavanaugh’s Employment Opinions.” (Read the full version – subscription required.)
Following is an excerpt:
Shortly after President Donald Trump announced the nomination of Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals to the U.S. Supreme Court, the AFL-CIO said that the nomination amounted to a rejection of “working men and women.” Supporters of the nomination — including employers — disagree and hope that he will neither legislate from the bench nor increase the regulatory burden (thereby creating new jobs and opportunities for all Americans). Between now and any confirmation vote, senators and others will pore over Judge Kavanaugh’s prior opinions for clues about how he might rule on labor and employment issues as a Supreme Court justice. A review of his D.C. Circuit decisions in the initial hours following the nomination reveals a judge who has ruled in favor of employers, but also one who has called out discrimination and injustice where he has found it.
In Judge Kavanaugh’s early years on the court of appeals, he articulated the view that courts should not act as “super-personnel departments” dissecting employer’s decisions. In Adeyemi v. District of Columbia (2008), affirming entry of summary judgment for an employer in an Americans with Disabilities Act failure-to-hire case, Judge Kavanaugh responded to the plaintiff challenging the employer’s assessment of his qualifications for the position in issue. Judge Kavanaugh initially wrote that “[i]n cases where the comparative qualifications are close, a reasonable jury would not usually find discrimination because the jury would ‘assume that the employer is more capable of assessing the significance of small differences in the qualifications of the candidates, or that the employer simply made a judgment call.’” But perhaps more importantly, citing prior precedent, Judge Kavanaugh stated that courts must “respect the employer’s unfettered discretion to choose among qualified candidates” because to do otherwise “would be to render the judiciary a super-personnel department that reexamines an entity’s business decisions — a role we have repeatedly disclaimed.”