What will Neil Gorsuch mean for workers’ rights?

Neil M. Gorsuch has recently become the 113th justice of the United States Supreme Court. Republicans had refused to consider President Obama’s Supreme Court nominee, Judge Merrick Garland, claiming that the choice of a justice to replace Justice Antonin Scalia should belong to the president who succeeded Obama. Once Democrats filibustered, they altered the Senate rules in order to push Judge Gorsuch through. Appointed by President Trump and aggressively pushed through the confirmation process, Judge Gorsuch may be able to serve on the Court for 30 or more years and is likely to leave a lasting impression on the Court’s jurisprudence.

The confirmation is a potential disaster for workers’ rights. Although Judge Gorsuch is a highly esteemed judge, his past decisions show far more sympathy for corporations than their employees. He is highly likely to rule in a similar fashion in the future, although there have been Supreme Court justices in the past whose views shifted once they were on the bench.

Judge Gorsuch’s decisions during his decade-long tenure on the United States Court of Appeals for the 10th Circuit have shown he believes that corporations should have the same rights of religious freedom and free speech as people. This approach—placing corporations on the same playing field as human beings—has helped big business in the past and evinces little concern for workers and their lives.

Prior to Justice Scalia’s passing, the Supreme Court under Chief Justice Roberts had limited employment discrimination laws put in place to protect workers. Justice Scalia, along with his conservative colleagues, made it easier for corporations to force consumers into mandatory arbitration, even though an individual’s right to go to trial is embedded in the Constitution. In the prior term, without Justice Scalia, there was no judge to vote in support of corporations over people. With the participation of Judge Gorsuch, the Court may continue to make it harder for workers to secure justice, particularly against big and powerful corporations.

This is a problem because corporations can use these supposed rights in order to deny certain workers health care insurance or discriminate against particular customers in contravention of federal and state laws. Judge Gorsuch’s belief that corporations are people suggest that he will push the Court to provide increasing support for corporations, removing remedies to workers who’ve been wronged by their employers.

For example, in 2013, he ruled in an unprecedented fashion that a corporation has a right to religious freedom and that a corporation was entitled to the protection of the Religious Freedom Restoration Act, which applied only to people. Judge Gorsuch and his colleagues allowed the corporation Hobby Lobby to deny its employees health insurance that included coverage for contraception, even though the ACA required such coverage to be provided. He wrote a concurring opinion in which he expressed no consideration for the employees’ moral and religious beliefs in using contraception.

As a result of the Hobby Lobby decision, businesses have increasingly tried to get exemptions from various laws that protect workers, including employment discrimination laws and child labor prohibitions. In the future, if corporations are treated as people, they may be permitted to refuse to provide health insurance for gay, lesbian, bisexual, or transgender employees or their partners on the grounds of religious freedom.

Numerous important questions that affect your employment or the employment of your family and friends are likely to come before the Supreme Court. It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.

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