On April 10, 2017, Neil Gorsuch was sworn in as the 113th Justice of the Supreme Court of the United States. Find out what that means for employment discrimination cases filed by women, LGBT, and disabled workers.

In this blog post I will review some of the 10th Circuit Court cases by Neil Gorsuch on employment discrimination as well as public commentary on his possible position within the Supreme Court. While no one can predict how a given judge or justice will rule on any particular case, I will discuss trends in his decisions which could indicate future his leanings on the Supreme Court.

Neil Gorsuch’s Confirmation to the Supreme Court

The process to fill the seat of Justice Antonin Scalia, who died in February 2016, has been long and involved. Senate Republicans refused to consider confirmation of Judge Merrick B. Garland, who was nominated by President Barack Obama in 2016, saying the choice should go to the next president. Following his inauguration, President Donald Trump put forward a new candidate: Judge Neil Gorsuch of the 10th Circuit Court of Appeals.

This time it was the Democratic Senators who objected. In addition to procedural complaints, they said that Neil Gorsuch’s record on women’s rights and workplace discrimination made him a dangerous choice to sit on the nation’s highest bench. In the end, the Republican-led Senate had to change its rules, lowering the voting threshold for confirmation to get around the Democrats’ filibuster. After all of the political maneuvering, Neil Gorsuch, age 49, was confirmed by a simple majority of the Senate, and took his judicial oath on April 10, 2017. The oath was administered by Justice Antony M. Kennedy, for whom Gorsuch had clerked early in his career.

Gorsuch’s confirmation does not end the questions about how the Justice will sway future Supreme Court decisions. Commentators continue to raise concerns about the way the Supreme Court’s newest justice has treated women, LGBT plaintiffs, and disabled workers in the past.

Neil Gorsuch on Women’s Rights

In his position on the 10th Circuit Court, Neil Gorsuch is perhaps most famous for joining the majority in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc). In that opinion, the court ruled that closely-held corporations that have religious objections to contraception may refuse to pay for health insurance that included birth control prescriptions under the Affordable Care Act. However, Judge Gorsuch has also ruled on many gender discrimination cases, with mixed results:

• Williams v W.D. Sports, N.M., Inc., 497 F.3d 1079 (10th Cir. 2007): The court overturned a jury verdict protecting a female hockey player from retaliation, but upheld the dismissal of 25 other counts of workplace discrimination.
• Simpson v. University of Colorado Boulder, 500 F. 3d 1170 (10th Cir. 2007): The court ruled in favor of female college students who were sexually assaulted by the university’s football team, finding that the college was responsible and had shown deliberate indifference to the risks.
• Orr v. City of Albuquerque, 531 F.3d 1210 (10th Cir. 2008): The court found in favor of plaintiffs on pregnancy discrimination claims, determining the defendant’s explanation was a pretext.
• Pinkerton v. Colorado Dept. of Transp., 563 F. 3d 1052 (10th Cir. 2009): The court found that, while the plaintiff suffered sexual harassment, she improperly waited two months before reporting it, defeating her claim.
• Strickland v. United Parcel Service, Inc., 555 F. 3d 1224 (10th Cir. 2009): Judge Gorsuch dissented from a decision finding sex discrimination against a female UPS driver. He felt that the supervisor had harassed male employees in the same manner as the plaintiff.
• Almond v. Unified School Dist. No. 501, 665 F. 3d 1174 (10th Cir. 2011): The court found that the Lilly Ledbetter Fair Pay Act did not apply to school custodians required to transfer to different positions with lower pay.
• Barrett v. Salt Lake County, 754 F. 3d 864 (10th Cir. 2014): The court upheld a jury verdict against the county finding it had retaliated against an employee who aided a female coworker in filing a discrimination claim.

While his decisions are mixed, some feel that what Justice Gorsuch has said off the bench may be a better gauge of his opinions now that he is not limited by higher court precedent. During its deliberation, former student Jennifer Sisk wrote to the Senate Judiciary Committee, warning that as her professor Gorsuch claimed women were using their companies for maternity benefits, only to quit after their babies were born. He told the class that future employers can and should question female interviewees about their family planning in order to protect their companies. Title VII prohibits discrimination based on pregnancy and prevents employers from asking these types of questions in the interview process. These comments, together with his checkered history on sexual harassment raise concerns about the future of gender discrimination claims at the Supreme Court level.

Neil Gorsuch on LGBT Employment Rights

Sexual orientation discrimination and harassment of trans* workers are on the forefront of employment discrimination law, and are likely headed to the Supreme Court in the near future. Justice Gorsuch has not ruled on many LGBT cases, but what he has to say tends to show he will not take kindly to the arguments.

In 2005, Gorsuch wrote an opinion article for National Review Online, in which he criticized liberal advocates for their use of litigation to push civil-rights reform.

His two decisions on LGBT issues at the 10th Circuit tend to echo that reservation:

• Kastl v. Maricopa Co. Comm. College Dist. (unpublished): The court ruled against a transgender woman prohibited from using the women’s restroom at work until she provided documentation of gender reassignment surgery.
• Druley v. Patton, 601 Fed. Appx. 632 (10th Cir. 2015) (unpublished): The court ruled against a transgender inmate seeking hormone treatment and transfer out of an all-male prison facility.

In addition, the Hobby Lobby decision suggests that Gorsuch may be willing to entertain a religious objection to hiring LGBT employees.

Neil Gorsuch on Disability Rights

The Americans with Disabilities Act requires employers to make reasonable accommodations to disabled employees. But in the past, Justice Gorsuch has not required employers or schools to go very far out of their way for the statute.

• Thompson R2-J School v. Luke P., Ex Rel. Jeff P., 540 F. 3d 1143 (10th Cir. 2008): The court refused to define the “free appropriate education” a school district must provide to a disabled student. (A case applying this decision is currently under consideration by the Supreme Court.)
• AF v. Espanola Public Schools, 801 F. 3d 1245 (10th Cir. 2015): The court required a student to exhaust her administrative claims under IDEA before suing under the ADA.
• Garcia v. Board, Educ., Albuquerque Public Schools, 520 F. 3d 1116 (10th Cir. 2008): The court found harmful violations did not require equitable relief, giving the trial court discretion to deny any remedy.
• Hwang v. Kansas State University, 753 F. 3d 1159 (10th Cir. 2014): The court ruled that reasonable accommodations did not require a university to hold a job open beyond six months’ sick leave.
• Cinnamon Hills Youth Crisis v. St. George City, 685 F. 3d 917 (10th Cir. 2012): The court denied a disability discrimination case based on the disparate impact of policy on a residential treatment center.
• Elwell v. Oklahoma ex rel. Bd. of Regents, 693 F. 3d 1303 (10th Cir. 2012): The court ruled that Title II of the ADA doesn’t allow for a disability discrimination lawsuit against a public employer.

These opinions show a strong tendency for Neil Gorsuch to read disability statutes in favor of employers, denying employee disability discrimination lawsuits when they don’t strictly comply with the statutes’ terms.

Some commentators warn that a judge’s circuit court decisions don’t always predict his (or her) Supreme Court positions. Without the constraints of precedential decisions, a Supreme Court justice can sometimes use the position to make the changes he or she wants to see in the law.

But no one justice, even Anthony Kennedy, controls the future of the Court. Even if Justice Neil Gorsuch does live up to his reputation regarding workers’ rights, his voice replaces a similarly conservative Justice, Anton Scalia. While the Justice’s confirmation may not push the court to the left the way Democrats may have wanted under Obama, it doesn’t automatically mean the end of advances in employment discrimination law either.

At Eisenberg & Baum, LLP, our employment discrimination attorneys have been litigating gender discrimination and disability rights claims across administrations and under a wide variety of courts. If you have been discriminated against at work, you don’t have to wait for the next change at the Supreme Court. Contact Eisenberg & Baum, LLP, today for a consultation.