Kennedy’s Legacy in Employment Law, What’s Next

Bloomberg Law—Porter Wells and Jay-Anne B. Casuga
06.28.2018

U.S. Supreme Court Justice Anthony Kennedy announced his retirement only hours after the court handed down its 5-4 ruling June 27 that public employees don’t have to pay “fair share” union fees.

Kennedy has been hailed for years as the court’s swing vote on major social disputes, and his lasting impact in the employment law arena will be seen as generally conservative and pro-employer, attorneys tell Bloomberg Law.

This term alone, Kennedy voted with the conservative block on Janus v. AFSCME Council 31, Trump v. Hawaii, and Epic Systems Corp. v. Lewis, all of which were 5-4 decisions along ideological lines. Kennedy also sided with the conservative justices on Wal-Mart Stores, Inc. v. Dukes in 2011, a decision that narrowed the definition of the commonality requirement of class actions. He joined the conservative bloc again in NLRB v. Noel Canning in 2014, holding that President Barack Obama’s three recess appointments to the National Labor Relations Board were unconstitutional due to the short length of the recess in question.

But Kennedy’s openness to other ideas and points of view are what make him important as a jurist for the labor and employment bar, Paul Mollica, of counsel with Outten & Golden in Chicago, said. Mollica is a plaintiff’s side attorney who has written numerous friend-of-the-court briefs before the high court in employment cases.

“He was the least predictably pegged of the justices. He was the one who needed to be persuaded. People would say, ‘you’re arguing for Kennedy’ or ‘you’re writing briefs for Kennedy,’” Mollica told Bloomberg Law.

Kennedy is best known for his decisions in gay rights cases—Romer, Lawrence, Windsor, and Obergefell—that “moved the needle” on the issue of parsing sexual orientation discrimination disputes in the workplace, Rae Vann, a partner with NT Lakis in Washington, told Bloomberg Law. Vann represents employers and also serves as general counsel of the Center for Workplace Compliance, an employers’ association that files friend-of-the-court briefs in workplace cases.

It’s in part Kennedy’s work in the gay rights area that has contributed to the present circuit court split on whether Title VII of the 1964 Civil Rights Act protects against sexual orientation discrimination, Mollica said.

A previous Bloomberg Law analysis showed Kennedy being more even-handed in employment discrimination cases than some of his fellow justices. He fell between pro-employer Justices Clarence Thomas and the late Antonin Scalia, and pro-worker Justices Sonia Sotomayor and Ruth Bader Ginsburg.

His protection of individual liberties, as demonstrated by his votes on gay rights and abortion rights issues, gave some observers hope that his views on discrimination against the LGBTQ community in the workplace “would be equally progressive,” Michael Foreman, director of the Civil Rights Appellate Clinic at Penn State Law, said.

“His retirement obviously will directly impact those issues,” Foreman told Bloomberg Law.

His likely replacement by a justice appointed by President Donald Trump and confirmed by a GOP-controlled Senate “does not bode well for those in favor of a more expansive reading of Title VII,” Vann said.

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