Cox Padmore Skolnik & Shakarchy LLP

Will SCOTUS nominee Neil Gorsuch be friendly to businesses in employment discrimination claims?

The nomination of U.S. Court of Appeals Judge Neil Gorsuch to fill the Supreme Court vacancy left by Justice Antonin Scalia has been said to be a boon for businesses due to Gorsuch’s allegedly business-friendly jurisprudence. For example, Gorsuch is known to have been critical of securities fraud litigation as a federal judge. He has also ruled in favor of business interests in several employment discrimination cases.

In one case involving allegations of sex discrimination, Gorsuch wrote an opinion in which he found that UPS had not discriminated against a female worker for taking adverse employment action against her for taking leave under the Family and Medical Leave Act. While Gorsuch agreed with the retaliation claim, he said the fact that the employer had dealt similarly with male who took leave shows the treatment was not based on sex. 

In another case, which involved allegations that an employer made racial slurs against a black employee, Gorsuch found that the employee did not prove racial discrimination because he failed to show that the employer’s racial animus was directly related to the employee’s dismissal, which the employer claimed was based on misrepresentation of work hours. In another case involving a University that refused to extend a professor’s sick leave for cancer treatment or to rehire her, Gorsuch wrote an opinion in favor of the school on the grounds that the accommodation request was not reasonable, which is all federal disability law requires of employers.

These and other decisions have led some to believe that Gorsuch will be a pro-business presence on the Supreme Court, including in employment cases. Judges, of course, are not supposed to be either “pro-businesses” or “pro-worker,” but simply apply the law according to the proper interpretation. In practice, of course, it isn’t that simple, and pursuing a successful discrimination defense or appeal in court should involve carefully studying how judges have ruled in the past, their approach to jurisprudence, and the arguments they see as being effective.  

Employers, of course, should be proactive in handling employment discrimination matters by setting up clear workplace policies, effective avenues for resolution of complaints, and training of managers. Working with an experienced attorney can help a company avoid potential liability, and the costs and hassle that go with discrimination litigation. 

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