The case tugs at the heartstrings: A popular Kansas State University professor battles breast cancer, then leukemia. The school won’t extend her six-month sick leave, she loses her job and she cannot get rehired. She sues for discrimination based on disability.
Grace Hwang’s lawsuit was one of many employee cases heard by federal appeals court Judge Neil Gorsuch, President Donald Trump’s pick for the Supreme Court. The majority opinion he wrote siding with Kansas State is illustrative. His worker’s rights opinions are often sympathetic but coldly pragmatic, and they’re usually in the employer’s favor.
“Hwang’s is a terrible problem, one in no way of her own making,” Gorsuch’s 2014 opinion said about the former professor and attorney, who died last year. Federal law “seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work - not to turn employers into safety net providers for those who cannot work.”
A review of dozens of employment cases he heard in his decade on the U.S. 10th Circuit Court of Appeals reveals a focus on texts and a fondness for scrutinizing definitions of words in legislation and the Constitution. Conservatives herald his strict approach. Many liberals say it too often results in workers losing out.
The 49-year-old Gorsuch was a corporate law firm attorney and Justice Department associate attorney general before Republican President George W. Bush appointed him to the bench in 2006. If confirmed to the Supreme Court, he is likely to hear major workers’ rights cases. They could include whether companies can require that employees sign away rights to pursue class-action suits and whether the 1964 Civil Rights Act bars workplace discrimination against LGBTQ employees.
One 2016 case illustrates how Gorsuch’s fidelity to literal texts can lead to findings that appear to defy common sense and fairness.
TransAm Trucking driver Alphonse Maddin stopped on a wintry night after the trailer’s brakes froze. His torso went numb after waiting three hours in an unheated cabin for roadside assistance. A boss ordered him to not abandon the cargo. But Maddin, fearing for his health, unhitched the trailer and drove off. TransAm promptly fired him for disobeying an order.
In a dissent, Gorsuch said the Surface Transportation Assistance Act, which bars companies from firing a driver who “refuses to operate” an unsafe truck, didn’t apply to Maddin. Why? Because, he wrote, Maddin was operating the truck by driving off, not refusing to operate it. “There’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid,” he said. If one’s needed, he added, Congress should create it.
Writing for the majority, Judge Michael Murphy conceded some imprecise language. But he said the law could easily be seen as applying to drivers, such as Maddin, who are at risk by staying put. Murphy also directly challenged Gorsuch’s narrow, literal meaning of “operate.”
“The dissent believes Congress’ intent can be easily determined by simply choosing a favorite dictionary definition of the word,” Murphy wrote. But he added there was no doubt the law’s purpose was to keep drivers safe, so it was reasonable to find “a refusal to operate” encompassed a refusal to sit in a freezing truck.
Gorsuch’s judicial history, to some, suggests he isn’t employee friendly.
He has sided with employers 21 out of 23 times in disputes over the U.S. pensions and benefits law, the Employee Retirement Income Security Act, or ERISA.
One case involved employees of Solvay Chemicals, Inc., who accused Solvay of slashing early-retirement benefits without the proper notice required by ERISA. But writing for the majority in 2013, Gorsuch said the workers could only prevail if they showed the company’s lack of notice was “egregious.”
“What qualifies as ’egregious’?” he asked. “Happily, the statute defines the term for us.” Solvay, Gorsuch added, had plausibly blamed accidental oversight.
But that record doesn’t necessarily prove he’s anti-labor or outside the mainstream.
In all 21 ERISA cases in which he sided with employers, Gorsuch was with the majority, including often Democrat-appointed judges. Workers who sue lose “far more often than not” in most courts, sometimes because they underestimate the evidence needed to win, said Stuart Gerson, an acting U.S. attorney general in 1993 and now a health industry attorney.
Discerning judges’ personal views on issues by examining their rulings can be perilous because judges are usually bound by precedent to rule as they do.
That was true in a case Gorsuch heard in 2006.
Everett Young, who is black, alleged racial discrimination under Title VII of the Civil Rights Act after Dillon’s King Soopers in Colorado fired him as a grocery store investigator. Young accused one boss of calling him “a monkey.”
Gorsuch, writing the unanimous ruling, said the boss’s alleged statements “evince a deep and repugnant racial animus.” But the court was obliged, he said, by Title VII and precedent to determine if Young proved racism had led directly to his dismissal. Gorsuch concluded Young had not made the case and that the store had ample reason to dismiss him for misrepresenting his working hours.
Gorsuch has occasionally been less strict about adhering to texts.
He was on a three-judge panel that heard a complex 2009 case in which Payless ShoeSource sued its insurer, Travelers, to recover costs of a $2.4 million settlement over working hours. All three judges found for Travelers, rejecting arguments that misplaced modifiers and inexact punctuation in a liability policy put it on the hook for the settlement costs.
Writing for the panel, Gorsuch quoted comedian Groucho Marx in the movie “Animal Crackers”: “’One morning I shot an elephant in my pajamas. How he got into my pajamas I’ll never know.’” No one, Gorsuch wrote, thought Marx was saying he actually had an elephant in his pajamas because of imprecise grammar.
“We must,” he wrote about the Payless dispute, “acknowledge the parties’ plain meaning without being strait-jacketed by a grammatical rule into reaching a patently unintended result.”
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Tarm reported from Chicago and Lavoie from Boston. Associated Press Researcher Rhonda Shafner also contributed to this report.
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Find AP’s reporting on Neil Gorsuch here: https://apne.ws/2mfXk4V
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The AP National Investigative Team can be reached at investigate@ap.org
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