Employment & Labor Insider

President Trump's Supreme Court nominee Judge Neil Gorsuch is still looking good to me. I've now read his famous (among law nerds, anyway) concurrence in Gutierrez-Brizuela v. Lynch, in which he criticizes the Chevron doctrine. (Judge Gorsuch also wrote the majority opinion in Gutierrez-Brizuela, but his concurrence starts at pdf page 15.)

The Chevron doctrine, from a 1984 U.S. Supreme Court decision, essentially says that if a law passed by Congress is ambiguous, and if a federal agency interprets the ambiguity in a way that is "reasonable," then the court must accept the agency interpretation. Yes, this sounds nerdish, but it has very real practical consequences for the "regulated community" -- which would include just about everybody -- which means you and me, and employers.

Here's an oversimplified and imperfect* example of how Chevron can make a difference to real-world employers.

Title VII was enacted by Congress in 1964, and among other things, it prohibited discrimination based on "sex." In 1978, Congress enacted the Pregnancy Discrimination Act, which added "pregnancy and pregnancy-related conditions" to the meaning of "sex." Once the PDA took effect in 1979, it became unlawful to treat a pregnant employee less favorably than a similarly situated non-pregnant employee because of her pregnancy.

*Imperfect because, for illustrative purposes, I will not be using an actual regulation. Chevron applies to regulations. The standards that apply to other types of agency interpretations are different.

From 1979 until 2014 -- through the Ford, Carter, Reagan, Bush I, Clinton, and Bush II administrations, and about 3/4 of the Obama Administration -- the Equal Employment Opportunity Commission took the position that Title VII prohibited pregnancy discrimination but did not normally require reasonable accommodation of pregnancy and related conditions. Most courts accepted the view that a pregnant employee was "similarly situated" to a non-pregnant employee who had a non-work-related, temporary medical condition. An employer might accommodate such an employee out of the goodness of its heart, but it was not legally required to do so unless it accommodated other employees with non-work-related, temporary conditions. Considering that Title VII simply prohibits discrimination, that's a reasonable interpretation on the EEOC's part, right? Sure it is.

Prudent employers everywhere consulted with their lawyers and went to the time and trouble (and expense) to develop pregnancy policies that complied with the EEOC's position.

In the summer of 2014, the EEOC did an about-face and issued an Enforcement Guidance saying that employers were required to accommodate pregnancy and related conditions on the same basis that they accommodated (1) employees with work-related injuries or illnesses, (2) employees with "disabilities" within the meaning of the Americans with Disabilities Act, and (3) employees who are offered light duty ("make-work") for any reason. Well, heck, that's unreasonable, right?

Not necessarily. In 2009, the ADA was expanded to include less-"disabling" conditions, perhaps making "disabilities" more analogous to pregnancy-related restrictions. And if an employer can accommodate work-related injuries and provide make-work to employees, then why can't it do the same for pregnant employees?

Maybe the EEOC's new position is reasonable, too. If it is (and if it were a regulation rather than an Enforcement Guidance), the courts would have to accept the new interpretation.

So, prudent employers consult again with their attorneys, and go to the time and trouble (and expense) to develop pregnancy policies that comply with the EEOC's new position.

In March 2015, the Supreme Court decided Young v. UPS, which I've covered on this blog. The Supreme Court slapped down the EEOC's 2014 Enforcement Guidance, and the agency issued a revised version in June 2015, which wasn't quite as demanding of employers as the 2014 version. Well, ok, if the 2014 version was reasonable, then the 2015 version would have to be, too.

So, prudent employers  consult again with their attorneys, and go to the time and trouble (and expense) to develop pregnancy policies that comply with the EEOC's new position. (Actually, they probably don't change their policies this time because the Supreme Court standard is too vague to be able to count on, but you get the idea.)

Now, let's take it one step further. I don't think this is really going to happen, but suppose the Trump EEOC decides that we should return to the 1979-2014 interpretation and issues a new Guidance going back to the old ways. We already said that one was reasonable, so it's probably still reasonable.

Prudent employers can either leave their pregnancy-friendly policies in place, or they may want to go back to the way things were done in 1979-2014, now that that's legal again. So, they at least need to consult with their lawyers one more time, and if they're going to return to the old ways, they may need to amend their policies. Again.

Are you seeing a pattern here? Even though the interpretations are different each time, they are all "reasonable." That means, applying Chevron, that the courts have to accept the new interpretations. Which means that every time there is a change, you as the employer are having to (1) consult with your attorneys, who probably aren't free, (2) decide whether and how you need to change your policies, and maybe (3) actually change your policies. Our HR readers know what that last part means - drafting the policy, having it vetted by your attorneys (who probably aren't free) as well as upper management, having it revised, published, and printed (printers usually aren't free, either), and having meetings with management and employees to explain the new policy.

And, as big a hassle as all of that is, think how much worse all of this "whipsawing" would be if we were talking about, say, environmental regulations, where the rules are complex and cost a fortune to comply with, and the consequences for non-compliance can be dire.

That's an oversimplified illustration of the "practical" basis for Judge Gorsuch's objection to the Chevron doctrine. (He also believes the doctrine violates separation of powers.) Judge Gorsuch believes that too much power is concentrated in government agencies. And, bless his heart,* he believes that the "regulated community" should not be whipsawed every time there is a change in presidential administrations.

*I'm not saying "bless his heart" in the Southern (snarky) way, but in the Midwestern (genuine) way.   :-)

I'm not sure I agree with Judge Gorsuch because I am honestly not sure that there would be less "whipsawing" if judges interpreted the laws instead of government agencies. But I appreciate the fact that he seems to take separation of powers seriously and to think about the impact of agency interpretations on real people.

Final note: The late Justice Antonin Scalia, who Judge Gorsuch would be succeeding, was not yet on the Supreme Court when the Chevron decision was issued. However, legal analysts say that Justice Scalia agreed with Chevron and frequently invoked it in his decisions.

Update on Puzder confirmation hearing. In case you missed it, I updated my post from yesterday to include the reason why Andrew Puzder's confirmation hearing was delayed yet again. He is reportedly divesting holdings in CKE Restaurants, Inc., to avoid a conflict of interest. Notwithstanding the delays, he still wants to be Secretary of Labor.