Monday, July 2, 2018

What does Justice Kennedy's retirement mean for the future of EEO law?

If you're wondering whether Justice Anthony Kennedy's retirement will have a significant impact on EEO law, the answer is probably no. Despite his reputation for holding the swing vote in close cases, Kennedy has a solidly conservative voting record when it comes to employment discrimination. Since Kennedy joined the Court 30 years ago, it has split 5-4 (or 5-3) in well over a dozen cases under Title VII of the Civil Rights Act of 1964 and other federal EEO laws. And in every close case that split along ideological lines, Kennedy joined his conservative colleagues. These include decisions on the timeliness of pay discrimination claims (Ledbetter v. Goodyear Tire & Rubber Co.), the burden of proof in age discrimination claims (Gross v. FBL Financial Services), the commonality required for class actions (Wal-Mart Stores v. Dukes), and employer liability for racial harassment (Vance v. Ball State University).

Kennedy's voting record on EEO issues is in line with that of Justice Sandra Day O'Connor, who retired in 2006. Like Kennedy, O'Connor was widely viewed as a moderate conservative, but she also consistently voted with conservatives in close EEO cases, on issues such as federalism (Kimel v. Florida Board of Regents), punitive damages (Kolstad v. American Dental Association), disparate impact claims (Wards Cove Packing Co. v. Atonio), and racial harassment (Patterson v. McLean Credit Union). Kennedy joined O'Connor as part of the conservative majority in each of these cases; the latter two were overturned by Congress when it passed the Civil Rights Act of 1991, which was signed by George H. W. Bush. Because O'Connor's and Kennedy's records on EEO law are closely aligned, we can feel pretty confident that even if President Trump takes the unlikely step of nominating a so-called moderate conservative, the Court's approach to EEO law is unlikely to change.

Many advocates of LGBT rights had been hopeful that Kennedy would side with lower courts that have interpreted Title VII to prohibit sexual orientation discrimination. Justice Kennedy's strong support for gay and lesbian rights might have translated into a willingness to read protections against "sex" discrimination broadly. Then again, however, Kennedy's approach to applying abstract constitutional principles, like liberty, due process, and fundamental rights, is not necessarily a good measure of how he would interpret much more concrete terms adopted by Congress that have settled meanings. In the recent commerce clause case of South Dakota v. Wayfair, Inc., Kennedy, writing for the majority, demonstrated a willingness to support judicial action where Congress had failed to step up to the plate. Would Kennedy have felt similarly with respect to Congress's failure for over 40 years to adopt measures to prohibit sexual orientation discrimination? We'll likely never know.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.