By: Christopher T. Vrountas, Esq. and Allison C. Ayer, Esq., Vrountas, Ayer & Chandler, P.C.
President Trump recently nominated Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court. Confirmation hearings are expected to take place sometime in the Fall. Many predict the hearings will be contentious. Most expect the Democrats to fight Judge Kavanaugh’s confirmation because he stands to replace Justice Kennedy’s critical swing vote on the Supreme Court. However, given the Republican majority in the Senate, it is likely that Judge Kavanaugh will be confirmed. While his future rulings cannot be predicted with certainty, it is nonetheless worthwhile to try to evaluate Judge Kavanaugh’s judicial temperament on some key matters to try to analyze how he might decide certain cases interests if he is confirmed. To that end, below is a discussion a certain of Judge’s Kavanaugh’s decisions on employment-related matters.
Judge Kavanaugh is currently a judge in the United State District Court of Appeals for the District of Columbia. He was appointed to the federal bench in 2006 by President George W. Bush after serving in the President’s administration in various capacities, including Senior Associate Counsel and Staff Secretary. Prior to his work with President Bush, Judge Kavanaugh was a partner at a large law firm and he also served as Associate Counsel in the Office of General Counsel of Kenneth Starr during the investigation of President Clinton. He was born in 1965 in Washington, D.C. and he graduated from Yale Law School in 1990. He is married and has 2 daughters. After law school, he clerked for Justice Kennedy, who he is now poised to replace.
Analysis of a Selection of Kavanaugh’s Employment Cases
During his time on the federal bench, Judge Kavanaugh has heard cases concerning a variety of legal matters that may be of interest to employers. Below is a selection of cases that may help to indicate Judge Kavanaugh’s leanings and judicial philosophy on some of these issues:
Magloire K. Placide Ayissi-Ethoh v. Fannie Mae, et al. – Discrimination
This is a discrimination case where Judge Kavanaugh sided with the employee. Placide Ayissi-Ethoh worked as in the internal audit department at Fannie Mae. Placide Ayissi-Ethoh is African American, and he alleged that the company discriminated against him when it failed to give him a raise with his promotion as it had done with other white employees promoted at the same time. Placide Ayissi-Ethoh also alleged that when he complained to one supervisor about his lack of raise, she said “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.” He also alleged that the Vice President of Internal Audit yelled “Get out of my office nigger.” when Placide Ayissi-Ethoh complained that he was receiving staff level work even though he had been promoted. These managers denied making the comments.
Placide Ayissi-Ethoh filed claims of discrimination under theories of intentional discrimination and hostile work environment. On appeal, the D.C. Circuit found against the employer, reasoning that the comments alleged by the employee was sufficient direct evidence to support the intentional discrimination claim and severe enough to support the racial hostile work environment claim brought by Placide Ayissi-Ethoh.
Judge Kavanaugh agreed with the majority, and he wrote a concurring opinion asserting that federal law supports the proposition that one single comment can be sufficiently severe to justifying a finding of a hostile work environment. According to Judge Kavanaugh’s concurrence, when one comment involves a supervisor using an epithet so blatantly derogatory and offensive as the n-word, that comment alone without any other evidence of racially animus, is enough to establish a racially hostile work environment. Judge Kavanaugh noted “[n]o other word in the English language so powerfully and instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans” and furthermore “perhaps no single act can more quickly alter the condition of employment and create an abusive working environment” than the use of the n-word by a supervisor toward a subordinate.
Robert Lee Johnson v. Interstate Management Company, LLC – Retaliation
In a retaliation case brought by a hotel employee, Judge Kavanaugh this time found in favor of the employer. Johnson was a cook at a hotel in Washington, D.C. for nearly 15 years. During his tenure, Johnson received a “steady stream” of warnings from his employer concerning a variety of performance failures, including incorrectly filling out time sheets, violating the company’s anti-harassment policy, cleaning floor mats inside cooking pots, creating cross-contamination hazards while preparing meat, following improper procedures for thawing fish, and using the wrong ingredients to prepare meals. In March of 2010, Johnson was suspended for undercooking chicken, and a result, he was issued a final warning stating that any additional violations of the standard of conduct would result in his termination. Johnson’s poor performance continued, and he was fired in February 2011 after an investigation revealed that he had melted a piece of plastic wrap under the breading of a piece of cooked chicken that was served to a guest on a dinner shift.
For his part, Johnson claimed that he was not terminated legitimately for poor performance, but rather in retaliation for filing discrimination claims with the EEOC and for an OSHA complaint that which resulted in a nearly $35,000 fine against the employer. He filed retaliation claims under both OSHA and Title VII. The D.C. Circuit ruled against the employee, holding that the employer was entitled to summary judgment on both causes of action. Judge Kavanaugh wrote the opinion of the court which.
As for the retaliation claim brought under OSHA, Judge Kavanaugh found that the express language of the statute does not permit an employee a private right of action for retaliation under OSHA; only the Secretary of Labor can bring an OSHA retaliation claim against an employer.
In terms of the Title VII retaliation claim, Judge Kavanaugh found that the employer had clearly offered legitimate, non-retaliatory reasons for firing the employee – namely repeated, documented performance failings and workplace deficiencies that culminated in preparing a meal that imperiled the safety of customers. The employee had no direct evidence of retaliation, for example statements by supervisors or managers indicating retaliatory intent for the employment decisions. Judge Kavanaugh also noted that the employee did not have a basis to genuinely dispute the numerous infractions identified by the employer, other than unsupported assertions that he did not commit them or that he did not sign the written warnings. This was insufficient evidence of pretext, according to Judge Kavanaugh, to allow the employee to go forward to try the retaliation claim.
Fogo de Chao (Holdings) Inc. v. U.S. Dept. of Homeland Security, et al. – Immigration
In this immigration matter, Judge Kavanaugh sided against an employer who sought to hire non-citizens to work in its authentic Brazilian restaurants. Fogo de Chao operates Brazilian steakhouse restaurants, known as churrascarias, in Brazil and in the United States. Fogo de Chao had a history of hiring genuine gaucho chefs, known as churrasqueiros, to work in its restaurants pursuant to the L-1B visa program. These gaucho chefs are not American chefs trained in Brazilian cooking techniques, but rather are Brazilian chefs raised and trained in the particular culinary and festive traditions of traditional barbecues in the Rio Grande do Sul area of Southern Brazil.
For years Fogo de Chao was able to hire churrasqueiros through a Federal Immigration visa program known as L-1B, which allows qualifying multinational businesses to temporarily transfer foreign employees who possess “specialized knowledge” into the United States. In 2010, the Administrative Appeals Office of the Department of Homeland Security denied an L-1B visa to one of these churrasqueiros on the grounds that his cultural background, knowledge and training of Brazilian cooking and culture did not constitute “specialized knowledge.” The D.C. Circuit Court of Appeals on reversed, finding that these churrasqueiros did have specialized knowledge that permitted their hiring and transfer to the U.S. pursuant to an L-1B Visa.
Judge Kavanaugh dissented, opining that these chefs were not entitled to L-1B visas. Judge Kavanaugh’s dissent makes clear that he was concerned that allowing foreign chefs to work in U.S. restaurants pursuant to L-1B visas created a “substantial loophole” in immigration laws by “gutting” the specialized knowledge requirement. According to Judge Kavanaugh, “one’s country of origin or cultural background does not constitute specialized knowledge under the immigration statute for purposes of being a chef or otherwise working in an ethnic restaurant or bar in the United States.” Judge Kavanaugh also seemed to be concerned that Fogo de Chao’s preferential hiring of Brazilian chefs via the L-1B visa program disadvantaged American chefs. Judge Kavanaugh plainly asserted his view that while it may be financially expedient for the restaurant to hire Brazilian chefs rather than train Americans in Brazilian style cooking, the employer should not be permitted to “masquerade” the desire to cut labor costs as “specialized knowledge” under the immigration statute. He stated that the restaurant owner failed to establish that Fogo de Chao’s Brazilian chefs possess specialized skills that American chefs cannot learn within a reasonable amount of time, and therefore its attempt to “end-run” the specialized knowledge L-1B visa program should not be allowed.
Natl. Federation of Federal Employees – IAM v. Thomas J. Vilsack – Workplace Privacy/Drug Testing
In a labor case concerning workplace privacy and drug testing, Judge Kavanaugh sided with the employer. The National Federation of Federal Employees, a Union of Federal workers, challenged the constitutionality of a drug testing policy administered to Federal employees working at specialized residential centers for young adults. Specifically, the Union challenged the random drug testing of all employees working at 28 Job Corps Civil Conservation Centers operated by the U.S. Forest Service. These Civilian Centers are residential facilities for at-risk, economically disadvantages students ages 16 to 24, some of who have a history of drug use. The Federal employer argued that the random drug testing was necessary for the safe operation of the Centers and that their interesting in preventing illegal drug use at the facilities by both students and staff justified the intrusion in to the employee’s privacy and Fourth Amendment rights.
The D.C. Circuit Court disagreed, holding in favor of the Union. In the majority opinion, the Court acknowledged the need to protect the students from harm caused by the use of illegal drugs by Center employees. However, it said that this government interest in such safe operation of the Centers did not justify random drug testing of all employees, especially where there was no evidence of a serious drug problem among the staff and, it also reasoned that the nexus between risk posed by drug-using employees who may well have no contact with students to enforcing the Zero Tolerance drug policy against students was speculative. Notably, the Union did NOT challenge random drug testing of certain nursing staff, employees who hold commercial driver’s licenses, and residential staff who regulatory interact with the students, all of whom were subject to random drug testing.
Judge Kavanaugh dissented. It was his view that the government had a critical interest in drug testing all employees who work at specialized residential schools for at-risk youth that outweighed the intrusion on individual privacy of the employees. He noted that “a residential school program for at-risk youth who have a history of drug problems can turn south quickly if the schools do not maintain some level of discipline. To maintain discipline, the schools must ensure that the employees who work there do not themselves become part of the problem. That is especially true when, as here, the employees are one of the few possible conduits for drugs to enter the schools” given that the schools are located in extremely rural areas without access to outside resources. Judge Kavanaugh also noted that the particular procedure for drug testing - a urine simple – was “narrowly tailored” and not highly intrusive to the extent it only assessed whether the employee used drugs and no other private information. In these circumstances, random drug testing of all employees was not only constitutionally permissible but, it would be “negligent” to refrain from doing so.
Lessons from Judge Kavanaugh’s Decisions about the Direction of Federal Employment Law
While Judge Kavanaugh was nominated to the bench by a Republican and may have conservative leanings, he does not reflexively rule in favor of employers. He is willing to rule in favor or employees when the law and facts so dictate. Indeed, of the 4 cases discussed above, he twice sided with the employer and twice with the employee. With that said, here are some potential principles that may guide employers about Judge Kavanaugh’s judicial tendencies in the area of employment law:
Judge Kavanaugh believes that one comment can be enough to support a hostile work environment claim, depending on its severity. A derogatory racial epithet with significant historical “anathema” like the n-word is clearly enough for Judge Kavanaugh to permit an employee to proceed to a jury trial in a discrimination case. Applying this same reasoning, Judge Kavanaugh may well find sufficient evidence of a sexually hostile work environment a supervisor making one single comment referring to a female employee as the “c” word. He may also find that allegations of a manager making one comment about a disabled person being a “retard” would support a disability discrimination claim.