Supreme Court nominee Brett Kavanaugh tried to present himself as a #MeToo ally on Wednesday, saying he thinks sexual harassment at work is a “broad national problem that needs to be addressed, including in the judiciary.”
Kavanaugh, who was responding to questions from Sen. Orrin Hatch (R-UT) during his confirmation hearing, was trying to distance himself from his former mentor and boss, retired federal appeals judge Alex Kozinski, who faces allegations of sexual harassment and assault from 15 women.
Kavanaugh also said he wants to find ways to protect women from sexual harassment — an odd claim from a judge who has shown little interest in upholding the very laws meant to protect US workers from harassment and other forms of job discrimination.
Kavanaugh’s past legal opinions suggest he would most likely restrict, not expand, these rights if he is confirmed to the Supreme Court.
Under federal law, it’s illegal to discriminate against workers because of their race, sex, age, or disability, yet these laws are hardly effective in ensuring equal job opportunities for everyone. The federal courts are notoriously hostile toward workers who sue their employers for discrimination, and Kavanaugh’s record shows that he is part of the problem. Kavanaugh has expressed open disdain for the laws meant to give women, people of color, and older workers the same career opportunities afforded to young, white men.
During his 12 years on the US Circuit Court of Appeals for the District of Columbia, Kavanaugh has weighed in on about two dozen job discrimination cases, including lawsuits brought under Title VII of the Civil Rights Act and the Americans with Disabilities Act. His legal decisions dismissed workers’ claims in the vast majority of those cases.
Kavanaugh’s opinions reveal two things about the Supreme Court nominee: He doesn’t seem to think job discrimination is a widespread problem, and he has actively tried to limit the number of workers who are protected by anti-discrimination laws.
With a seat on the Supreme Court, Kavanaugh would have the power to reverse decades of progress made by women, people of color, and workers with disabilities in American workplaces. If a fitting case reaches the court, Kavanaugh would likely rule to weaken the fight for equal pay and a harassment-free workplace. He could also block efforts to extend civil rights to LGBTQ and immigrant workers who are routinely denied jobs and promotions.
Here are three cases that reveal a lot about Kavanaugh’s views on workers’ civil rights, and what those views could mean if he is confirmed to the Supreme Court.
The age discrimination case
Kavanaugh wrote the dissenting opinion in Miller v. Clinton, arguing that labor laws are bad for employers and businesses. The case, filed in 2007, involved an American safety inspector who worked at the US Embassy in Paris and who was forced to retire when he turned 65. At the time, the State Department had a policy mandating retirement at age 65 for all American employees working abroad. The employee, John Miller, sued the agency for age discrimination under the Age Discrimination and Employment Act.
A district court in Washington, DC, dismissed the lawsuit, saying that Americans working abroad for the State Department weren’t protected by ADEA. Not because the law specifically exempted them, but because another law, the Basic Authorities Act, allowed the State Department to hire workers overseas “without regard to such statutory provisions as relate to the negotiation, making, and performance of contracts and performance of work in the United States.”
The case was appealed, and the majority of Kavanaugh’s colleagues disagreed with the lower court and reversed the decision. In an opinion by Judge Merrick Garland, the majority held that the most reasonable reading of this language was as an exemption from certain government-wide contracting rules, and not an exemption from civil rights laws. They also said it was unlikely that Congress would exempt a class of employees from anti-discrimination law using such vague language, and they disputed that the ADEA is a statute related to the “performance of work.” The justices argued that ADEA bans discrimination on a basis that is “unrelated to the actual performance of work.”
Kavanaugh, in his dissent, held the opposite view. To him, firing an employee based on his age is entirely related to the “performance of contracts and performance of work.” He reasoned that anti-discrimination laws were never meant to apply to most American workers:
It would be absurd to read the statute as written is necessarily premised on an assumption that the anti-discrimination statutes currently extend to every nook and cranny of American workforces — and that an exception here therefore would be especially extraordinary. That assumption, too, is wrong. Congress has devised a wide variety of limits and exceptions to the anti-discrimination statutes.
He goes on to mention that firefighters and police officers are not protected by the ADEA. Neither are employees who work for businesses with fewer than 20 employees. So Kavanaugh did not consider it morally outrageous to think that Congress would also exclude thousands of Americans who work overseas.
The most telling part of Kavanaugh’s dissent, however, is his claim that exempting American workers from US labor laws overseas allows them to compete for jobs with foreign workers, who are not protected by US labor laws.
“To level the playing field and give American workers a fair chance to compete for those jobs at State Department posts abroad, Congress instead exempted American workers abroad from those US employment laws,” Kavanaugh wrote.
This line suggests that protecting workers from job discrimination is somehow bad for employees and employers, that it hurts competition by giving employers less flexibility in hiring and firing workers. Yet these laws were designed to do the opposite. Anti-discrimination laws are supposed to ensure fair competition so that only an employee’s performance and experience is relevant in hiring, compensation, and firing decisions — not individual characteristics unrelated to their job performance.
Kavanaugh’s argument is essentially this: Letting employers discriminate against certain workers fosters healthy economic competition. And making it illegal to discriminate against employees is a huge economic burden for employers. His logic would have far-reaching consequences on the Supreme Court, where Kavanaugh may decide against extending anti-discrimination protections to LGBTQ workers because he believes doing so would harm businesses. And if there is any consistency in Kavanaugh’s legal opinions, it’s his view that business interests trump nearly everything else.
The race discrimination case that could weaken #MeToo
Kavanaugh tried to scale back civil right protections in 2013 for another group of government employees: those who work directly with members of Congress.
In Howard v. Office of the Chief Administrative Officer of the US House of Representatives, the court considered whether a black woman could sue a House of Representatives office for racial discrimination and retaliation. LaTaunya Howard, who worked as the office’s budget director, said her new boss demoted her even though she had good performance reviews, then fired her after she filed a discrimination complaint. Her supervisor said he fired her because she didn’t complete her assignments.
A lower court had dismissed most of her claims in the lawsuit, saying they would violate the Constitution’s “speech or debate clause,” which protects lawmakers from liability for all activities within the “sphere of legitimate legislative activity.” The judges reasoned that for Howard to prove that her firing was actually based on her race, she would have to reveal detailed information about her work on the House budget, which would fall into the category of confidential “legislative acts.”
On appeal, the majority of Kavanaugh’s colleagues disagreed with this view and allowed the claims to proceed. They said that Howard would not need to provide detailed information about the content of her work; all she needed to prove was that the reason for her demotion and firing was really based on racial discrimination and retaliation.
Kavanaugh dissented, arguing that to defend against her claims, the administrative office would need to produce evidence of legislative activities. Then he admitted that he just didn’t think her claim was worth pursuing: “A plaintiff saddled with a stipulation that she was really lousy at performing her legislative duties is not a plaintiff who is likely to even get to trial, much less to win, in a discrimination case.”
In that line, Kavanaugh essentially took the role of a jury, predicting that jurors would obviously rule against Howard. It’s not too hard to see how this reflex to dismiss a discrimination lawsuit could hurt the #MeToo movement, as more and more women come forward with claims of sexual harassment at work.
Kavanaugh’s logic would make it nearly impossible for women who work in congressional offices to sue for sexual harassment, on the grounds that they may reveal confidential information about legislative acts. Kavanaugh would prefer these claims to remain outside the courts, hidden from public view, the way they have for decades.
The retaliation case
Kavanaugh has repeatedly tried to limit the number of employees covered by anti-discrimination law. In 2012, he tried to weaken protections afforded to another (large) group of federal employees: those who hold security clearances.
In Rattigan v. Holder, a black Jamaican employee at the FBI sued the Justice Department for racial discrimination and retaliation, alleging that his supervisors tried to get his security clearance revoked by intentionally sharing false information about him with the security division. The employee, Wilfred Rattigan, said they did so because they were angry that he had filed a discrimination complaint.
A jury awarded Rattigan $300,000 for the retaliation claim, and the agency appealed it, arguing that the courts cannot weigh in on decisions related to the denial or revocation of security clearances based on precedent from Department of the Navy v. Egan. The majority of Kavanaugh’s colleagues disagreed, saying that Egan only applied to decisions made by the FBI’s Security Division, but not to other employees’ decisions to report false information to the division. Kavanaugh, however, said that employees had no right to file discrimination claims related in any way to their security clearances.
“The Egan Court thus precluded agency employees ... from pursuing personnel actions against their agency employers when doing so would entail second-guessing the agency’s security clearance decision,” Kavanaugh wrote.
This line says a lot about Kavanaugh’s skepticism for anti-discrimination laws. In it, he downplays these complaints by describing them as mere “personnel actions,” instead of evidence of structural racism and sexism that perpetuates inequality.
What these mean for the US Supreme Court
It’s important to point out that Kavanaugh did agree with his colleagues in at least three decisions that upheld a worker’s discrimination claim. Two involved technicalities, but the other one, Ayissi-Etoh v. Fannie Mae, cuts right to the heart of what discrimination is, and what it looks like. In 2013, a black auditor at mortgage giant Fannie Mae filed a racial discrimination complaint against the company. The employee, Placide Ayissi-Etoh, claimed that he was denied a salary raise because of his race, and an executive repeatedly yelled at him and called him the n-word, saying “get out of my office, ni**er.”
The appellate court judges, including Kavanaugh, reversed a lower court’s decision to dismiss the lawsuit on the grounds that it did not create a hostile work environment and did not show enough evidence of retaliation. The appellate judges argued that the n-word and other verbal abuse definitely met the standard of a hostile work environment, which is something plaintiffs must prove in most racial discrimination cases.
But Kavanaugh went even further than his colleagues in his concurring opinion, saying that using the n-word even once toward a black subordinate is enough to create a hostile work environment, because “[n]o other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.”
Kavanaugh’s view highlights the immense hurdles employees have to overcome to seek legal justice for job discrimination. Federal judges seem to think only the most obvious, extreme racial slurs qualify as racial discrimination and only severe, repeated groping qualifies as sexual harassment. But the reality is that discrimination is often more subtle and harder to detect, though equally damaging to someone’s career. And more often than not, Kavanaugh does not acknowledge those subtleties, or simply chooses not to.