What can employers expect from a Justice Garland?

NOTE (3/16/16): This post has been corrected since it was originally posted. 

President Obama has nominated Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit to the Supreme Court vacancy created by the death of Justice Antonin Scalia.

Judge Garland, age 63, had bipartisan support when he was nominated to the D.C. Circuit (in 1995, by President Clinton), his academic credentials are stellar, and it appears that he is well respected in the legal community.

But inquiring minds want to know: How is he on labor and employment cases?

For some quick answers, I'm quoting from a post by Tom Goldstein on the outstanding SCOTUSblog. Mr. Goldstein provided a survey of Judge Garland's decisions in 2010, when he was a contender for the seat that was ultimately filled by Justice Elena Kagan (minor edits by me for readability, and substantive edits to the summary of the Kolstad case):

"Judge Garland has not been called upon to decide many civil-rights-related claims of great significance. It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous.

"When, however, Judge Garland participated in a divided ruling, it was generally in favor of the plaintiff. The Kolstad case, in which Judge Garland dissented from the denial of rehearing en banc from a panel decision limiting the availability of punitive damages under Title VII and the Supreme Court subsequently reversed, is discussed above**. Other illustrative cases are . . . Duncan v. WMATA (joining en banc opinion rejecting claim under ADA); Aka v. Washington Hosp. Center (joining en banc opinion holding that plaintiff was entitled to pursue Age Discrimination in Employment Act and ADA claims; U.S. ex rel. Yesudian v. Howard Univ. (plaintiff could pursue False Claims Act retaliation action)."

Here's what Mr. Goldstein said about Judge Garland's role in the Kolstad case:

"Judge Garland was one of four judges who dissented from the denial of rehearing en banc in a case in which the panel had limited the availability of punitive damages under Title VII. The Supreme Court subsequently reversed. Kolstad v. Am. Dental Ass'n."

Returning to Mr. Goldstein's survey of Judge Garland's employment law decisions:

"The unanimous rulings in which Judge Garland participated similarly reflect a concern that civil rights plaintiffs receive an appropriate day in Court. E.g., Steele v. Schafer (reversing summary judgment for employer and reinstating hostile work environment and retaliation claims); Harris v. Gonzales (reversing summary judgment that employee could not establish lack of notice of filing deadline for civil rights suit); Czekalski v. Peters (reversing summary judgment to permit plaintiff to attempt to establish that reassignment constituted actionable demotion).

"Judge Garland also authored an opinion narrowly reading states' sovereign immunity from suit under the civil rights laws. Barbour v. WMATA (holding that WMATA waived sovereign immunity from suit by accepting funds under Rehabilitation Act)."

I'll do more digging, but it sounds like Judge Garland leans a bit toward the employee side.

According to Hannah Belitz of the blog OnLabor, Judge Garland also leans heavily toward enforcing decisions by the National Labor Relations Board, having found in the Board's favor in all but four of the 22 cases for which he wrote the majority opinion. Judge Garland was not on the panel that decided Noel Canning.

Now. Will the Republicans let Judge Garland's decision go forward? That is the real question.

CORRECTION: The Goldstein quotes, above, said that Kolstad v. American Dental Association involved the Americans with Disabilities Act. In fact, Kolstad was a Title VII case. I have made the appropriate corrections to the quoted material. Here is a link to the D.C. Circuit decision. The Supreme Court subsequently reversed the majority decision, from which Judge Garland dissented. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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