Kavanaugh’s Nomination to Supreme Court Threatens Workplace Protections for Women

A woman holds up a sign during a rally to protest President Donald Trump's Supreme Court justice nominee Brett Kavanaugh, Denver, August 2018.

For decades, the U.S. Supreme Court has played a pivotal role in propelling women’s advancement in the United States. From the workplace to the classroom, the athletic fields, and the science lab, women’s progress has been inextricably linked to the court’s recognition that women’s equality is central to upholding the national commitment to equal justice under law. Yet the work necessary to translate the promise of equality into reality for all working women has not happened overnight—nor is that work by any means complete. It is an undertaking that has required and still requires an intentional, persistent, unyielding push for change, often challenging an unrelenting status quo that benefits from keeping too many women stuck in second-tier roles. It also requires recognizing the diverse realities of women’s lives and rejecting a monolithic narrative about who women are, what women need, and which women deserve to be heard. Addressing the unique challenges faced by women of color, immigrant women, and women with disabilities, as well as LGBTQ women and low-income women of all races and ethnicities, is integral to achieving real progress. In this environment, it is essential to have a Supreme Court that is unwavering in its commitment to the fair and equal administration of justice for all and in its steadfast adherence to the rule of law at all times. Sustaining this vital institutional purpose requires full and careful consideration of any potential Supreme Court nominee. Only those who will judge each case fairly and impartially without regard for personal preference or political agendas deserve elevation to the nation’s highest court.

Unfortunately, to fill the seat of retiring Justice Anthony Kennedy, President Donald Trump has nominated Judge Brett Kavanaugh, whose partisan résumé includes stints working with the controversial former independent counsel Kenneth Starr and for the George W. Bush administration. Kavanaugh’s 2006 appointment to the D.C. Circuit Court of Appeals came only after a highly contentious confirmation battle—contentious in part because of his politically driven work history. His record and writings raise serious doubts about whether he would serve as an even-handed jurist rather than an ideologue.

Working women have much to gain—and even more to lose—with the next Supreme Court justice. They  deserve nothing short of a nominee with a strong, demonstrated commitment to the equality protections that have been essential to all women’s progress in the workplace. Kavanaugh’s record fails to meet this standard.

Understanding the legal framework for women’s full participation in the workplace

The relevance of women in the U.S. economy cannot be overstated. The vast majority of women in the United States—across race, ethnicity, and economic status—will spend some portion of their adult lives participating in the workforce. For many, their participation is not simply a personal choice but rather an economic necessity to ensure a level of financial stability for themselves and their families. Women are increasingly breadwinners—analyzing data from 2015, almost two-thirds of mothers are sole, primary, or co-breadwinners for their families. An even larger percentage of mothers of color are family breadwinners, with more than 70 percent of African American mothers and more than 40 percent of Latina mothers being the sole or primary breadwinners for their families. Given this reality, fair treatment when trying to find or keep a job is crucial to the economic well-being and progress of all women and their families. But too often, women have seen their employment opportunities constrained by numerous factors, including long-standing stereotypes, inadequate workplace protections, family caregiving responsibilities, inaccessible training options, and discrimination. These obstacles negatively affect women’s overall labor force participation and their ability to access the jobs that they want and need.

Understanding the connections between women’s economic value to their families and women’s access to equal employment opportunity is critically important. Many of the federal laws that enable women to pursue better job opportunities recognize the connections between women’s family, economic, and workplace obligations. Law such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on factors such as sex, race, and national origin; the Equal Pay Act, which requires equal pay for equal work; the Family and Medical Leave Act (FMLA), which provides eligible workers with 12 weeks of unpaid leave for family or medical emergencies; and the Pregnancy Discrimination Act, which prohibits job discrimination against women who are or may become pregnant, are collectively key to ensuring that women’s family roles are not used to undermine women’s ability to be paid fairly, to pursue the job or career of their choice, and to provide support to their families.

Congress established much of this legal framework pursuant to authority granted by the U.S. Constitution. Congress cannot pass laws in a vacuum—the Constitution identifies specific areas in which Congress can act, such as interstate commerce and anti-discrimination enforcement. The Commerce Clause, found in Article I of the U.S. Constitution, empowers Congress to enact workplace laws governing the conduct of both private sector and public sector employers where the employers are economic actors engaged in commerce across state lines. Congress is also constitutionally authorized to establish laws governing the conduct of states to effectuate the anti-discrimination purposes of Section 5 of the U.S. Constitution’s 14th Amendment. Congress has relied on the authority granted through both of these provisions to enact laws prohibiting gender discrimination and combating other barriers facing women in the workplace. The Supreme Court plays a pivotal role as the final decision-maker in interpreting the limits of these constitutional sources of authority to determine which laws pass legal muster and which do not. Congress’ ability to establish strong workplace protections has been instrumental in enabling women to advance in the workplace. But it is the Supreme Court that often has the final say on whether Congress has acted within its constitutional authority when adopting different workplace rules or allowing workers to seek certain remedies.

Kavanaugh’s nomination threatens critical protections essential to equal employment opportunity

Too often, the public discourse about women in the workplace is overly narrow, ignoring how biases around race, ethnicity, sexual orientation, family caregiving responsibilities, disability, and economic status can affect women’s work experiences and opportunities. Women’s continued workplace progress depends on having Supreme Court justices who will consider each case with a clear understanding of the real-world implications of their rulings in the context of the diverse lives women lead. Judge Kavanaugh’s record raises troubling concerns about his commitment to upholding and advancing women’s workplace rights, both in terms of the judicial philosophy that he would bring to the court and the legal reasoning demonstrated in his judicial writings.

Kavanaugh’s judicial philosophy would undermine women’s progress in the workplace

Although much of his record has been shielded from public scrutiny, what is known about Kavanaugh’s judicial and legal philosophy is troubling. He often favors an overly narrow legal approach that has the effect of limiting the reach of important worker protections. In particular, Kavanaugh in his writings and speeches has heaped effusive praise on former Supreme Court Chief Justice William Rehnquist, lauding his efforts to limit the reach of constitutional provisions such as the Commerce Clause. But left unspoken in his glowing commentary is any discussion of the practical implications of these troubling views. In National League of Cities v. Usery, for example, Justice Rehnquist led the charge to argue against allowing states to be sued by state workers in federal court to enforce the minimum wage and overtime requirements of the federal Fair Labor Standards Act (FLSA). Women are disproportionately more likely to be minimum wage workers, meaning that such rulings could hit them where it hurts the most—the pocketbook. Although Usery was later overruled in Garcia v. San Antonio Metropolitan Transit Authority, Rehnquist’s analysis has been echoed in later decisions such as Alden v. Maine, where Rehnquist joined the majority of a bitterly divided court to prevent state workers from enforcing the FLSA’s minimum wage and overtime requirements in state court.

These decisions not only negatively affect workers seeking to enforce their rights to earn the minimum wage or overtime, but they also may have implications for other laws. The Equal Pay Act is an amendment to the FLSA and could face similar attacks to limit its scope. Although many courts have ruled that the Commerce Clause does not limit the enforcement of the Equal Pay Act, the analysis espoused by Rehnquist—and endorsed by Kavanaugh—could be used by a future Supreme Court to erode equal pay protections that women sorely need. Also on the horizon are ongoing questions concerning the scope of Section 5 of the 14th Amendment, which empowers Congress to enforce the amendment’s anti-discrimination protections against states. An overly narrow reading of Section 5 could jeopardize important efforts to combat gender discrimination in the workplace, and the constrained Kavanaugh approach raises serious questions about his willingness to hold all employers accountable when discrimination occurs.

Kavanaugh’s judicial opinions indicate a willingness to overlook workers’ workplace realities

Although Judge Kavanaugh has written hundreds of opinions while on the D.C. Circuit Court of Appeals, only a few of his published rulings have involved analyzing anti-discrimination protections. Many of these opinions raise concerns that he too often favors employers over employee efforts to root out discriminatory practices—and ignores the real-world implications of those views.

  • In Howard v. Office the Chief Administrative Officer of the United States House of Representatives, Kavanaugh filed a dissent arguing that the plaintiff, an African American female congressional staffer, should not be able to pursue her employment discrimination claim in a federal district court but instead should rely on an in-house congressional office for review. Forcing the staffer to rely solely on an in-house office would have made it much harder to ensure a fair, unbiased review of her claim.
  • In Agri Processor Co. Inc. v. National Labor Relations Board, Kavanaugh wrote a dissent arguing that the employer should not have to bargain with a group of employees because some of the employees who voted to unionize were unauthorized immigrants. If he adopted this position when analyzing the scope of anti-discrimination laws, employers could discriminate against vulnerable workers with impunity solely because of the workers’ immigration status. Further, his argument was inconsistent with other court rulings, making clear that the law protects workers regardless of their immigration status.
  • In Richard America v. Karen G. Mills, Kavanaugh upheld a district court judgment in favor of an employer who breached a settlement agreement in a race discrimination case. The agreement required the employer to ensure that any future references given about the plaintiff after he departed consist of neutral comments by a designated official. Although the employer later violated this provision, Kavanaugh concluded that the breach was not significant enough to raise a concern.
  • In Jackson v. Gonzales, Kavanaugh upheld a district court’s dismissal of a race discrimination claim filed by an African American male employee. The plaintiff asserted that the employer chose not to hire him because of his race, pointing to inconsistencies in the employer’s evolving explanation about the hiring decision and a mismatch between the job skills actually needed for the job and the qualifications of the white employee hired. Kavanaugh allowed the case to be dismissed before a jury could fairly evaluate whether the allegations had merit.

These decisions reveal Kavanaugh’s tendency to side with employers without regard for the consequences, especially for workers. Moreover, his views would only exacerbate the power imbalances within many workplaces that make it harder for women and men to safeguard their rights.

Conclusion

Women’s continued progress in the workplace hinges on elevating judges who can bring an unbiased perspective to each case that recognizes the diverse lives women lead every day. The measure of this progress cannot be confined to a narrow, elite worldview that cherry-picks which women’s voices are validated and ignores how different policy choices affect women across racial, ethnic, and economic boundaries. Any nominee intent on rolling back protections that have been critical for women’s advancement is undeserving of a seat on the Supreme Court. Judge Kavanaugh’s available record presents a troubling picture. His reflections on a Supreme Court justice he admires, as well as his constitutional interpretations are more than simply harmless intellectual musings. They also reveal a philosophical approach that could jeopardize important workplace protections that have spurred women’s progress. Further, his judicial opinions too often favor the employer and ignore workers’ workplace realities. With many hard-won rights hanging in the balance with the next Supreme Court justice, working women deserve a nominee with a demonstrated record of commitment to equality for all, not just a privileged few. Clearly, Brett Kavanaugh’s lengthy and well-documented record fails to measure up.

Jocelyn Frye is a senior fellow at the Center for American Progress.