Gorsuch sympathizes with workers, often sides with bosses
The case tugs at the heartstrings: A popular Kansas State University professor battles breast cancer, then leukemia. The school won’t extend her sixmonth sick leave, she loses her job and she cannot get rehired. She sues for discrimination based on disability.
Grace Hwang’s lawsuit was one of many employee cases heard by federal appeals court Judge Neil Gorsuch, President Donald Trump’s pick for the Supreme Court. The majority opinion he wrote siding with Kansas State is illustrative. His worker’s rights opinions are often sympathetic but coldly pragmatic, and they’re usually in the employer’s favor.
“Hwang’s is a terrible problem, one in no way of her own making,” Gorsuch’s 2014 opinion said about the former professor and attorney, who died last year. Federal law “seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”
A review of dozens of employment cases he heard in his decade on the U.S. 10th Circuit Court of Appeals reveals a focus on texts and a fondness for scrutinizing definitions of words in legislation and the Constitution. Conservatives herald his strict approach. Many liberals say it too often results in workers losing out.
The 49-year-old Gorsuch was a corporate law firm attorney and Justice Department associate attorney general before Republican President George W. Bush appointed him to the bench in 2006. If confirmed to the Supreme Court, he is likely to hear major workers’ rights cases. They could include whether companies can require that employees sign away rights to pursue class-action suits and whether the 1964 Civil Rights Act bars workplace discrimination against LGBTQ employees.
One 2016 case illustrates how Gorsuch’s fidelity to literal texts can lead to findings that appear to defy common sense and fairness.
TransAm Trucking driver Alphonse Maddin stopped on a wintry night after the trailer’s brakes froze. His torso went numb after waiting three hours in an unheated cabin for roadside assistance. A boss ordered him to not abandon the cargo. But Maddin, but fearing for his health, unhitched the trailer and drove off. TransAm promptly fired him for disobeying an order.
In a dissent, Gorsuch said the Surface Transportation Assistance Act, which bars companies from firing a driver who “refuses to operate” an unsafe truck, didn’t apply to Maddin. Why? Because, he wrote, Maddin was operating the truck by driving off, not refusing to operate it. “There’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid,” he said. If one’s needed, he added, Congress should create it.
Writing for the majority, Judge Michael Murphy conceded some imprecise language. But he said the law could easily be seen as applying to drivers, such as Maddin, who are at risk by staying put. Murphy also directly challenged Gorsuch’s narrow, literal meaning of “operate.”
“The dissent believes Congress’ intent can be easily determined by simply choosing a favorite dictionary definition of the word,” Murphy wrote. But he added there was no doubt the law’s purpose was to keep drivers safe, so it was reasonable to find “a refusal to operate” encompassed a refusal to sit in a freezing truck.