Kavanaugh on Workers’ Rights

September 1, 2018

Brett Kavanaugh’s nomination to the United States Supreme Court represents a clear and present danger to the rights of workers and their families and the protections they are afforded by law. His decisions and opinions have strongly favored big business and corporations at the expense of workers.

Safety at the Workplace

In 1970, Congress enacted the Occupational Safety and Health Act, making clear that workers have the right to safe working conditions. According to the AFL-CIO, “more than 579,000 workers now can say their lives have been saved since the passage” of the Act.

Since 1970, workplace safety has improved, but too many workers still lose their lives or get injured on the job. An average of 14 workers die of job injuries each day in the U.S.; and in 2016, nearly 3.7 million workers had work-related injuries and illnesses. Whether these workers can hold their employers accountable is largely dependent on federal judges properly enforcing the law.

If confirmed, Kavanaugh can be expected to dismantle workplace protection and safety laws. In SeaWorld of Fla., LLC v. Perez, OSHA fined SeaWorld after a trainer – Dawn Brancheau – was mauled to death by a killer whale that had “known aggressive tendencies” and had killed a trainer in the past. OSHA found that SeaWorld had failed to adopt sufficient safety measures, and the D.C. Circuit upheld OSHA’s fines. Kavanaugh, though, argued

that the idea that employees should be protected from death or significant injury was

“paternalistic” and would have reversed OSHA’s actions.

Ability for Workers to Effectively Bargain for Fair Wages and Safe Working Conditions

The ability of hard-working Americans to come together to bargain over fair wages, good benefits, and safe working conditions is critical. Yet, the wealthy and powerful have led a decades-long attack on unions and the bargaining power of American workers. Just this year, justices on the Supreme Court overturned a 41-year precedent, in Janus v. AFSCME, to make it more difficult for public sector workers to bargain effectively.

Kavanaugh has consistently opposed American workers banding together to defend their rights. For example, he wrote an opinion upholding Department of Defense (DOD) regulations that undermined the collective bargaining rights of hundreds of thousands of

DOD civilian employees. Another judge noted that Kavanaugh’s decision would allow DOD to “abolish collective bargaining altogether.”

Kavanaugh also sided with a company fighting workers attempt to improve working conditions, arguing contrary to the NLRB, other judges, and prior Supreme Court precedent, that the workers’ vote to join a union was invalid because of some of the workers’ immigration statuses. Less than a year later, there were public reports of serious abusive conditions at the same company, including allegations of child labor and unpaid wages.

Kavanaugh also wrote opinions supporting the Venetian hotel’s decision to ask the police to issue criminal citations against union demonstrators who were protesting legally; CNN when the NLRB found it had discriminated against union members in hiring and needed to recognize and bargain with a worker’s union; and Verizon’s decision to prohibit union members from displaying pro-union signs in their cars while at work.

Kavanaugh also sided with Donald Trump’s Venetian Casino when it tried to prevent workers from unionizing.

Equal Employment Opportunities

Federal judges are critical in ensuring that all persons have an equal opportunity to be hired, promoted, receive equal pay for equal work, and be free from harassment in the work place. Federal laws, including the Civil Rights Act of 1964, are meant to ensure that workers are judged by their talent, ability, and qualifications, not their race, sex, national origin, age, disability, sexual orientation or gender identity. Furthermore, they determine whether workers are able to pursue claims against employers that violate these rights or to unite in strong unions to advocate for fair treatment in the workplace.

As a judge, Kavanaugh has denied employees protections under anti-discrimination laws.  In one case, Kavanaugh dismissed an African-American employee’s claim of racial discrimination after he was denied a promotion that went to a white employee. Kavanaugh accepted the employer’s claim that the employee wasn’t promoted because he lacked a specific skill, even though the skill was never listed as a job requirement. A dissenting judge said there was evidence that the employer’s claim was “fabricated to mask unlawful discrimination.”

In another case, Kavanaugh disagreed with a majority ruling on an African-American employee’s right to pursue a claim of discrimination. The employee sued for racial discrimination and retaliation when she was fired from her job as a senior advisor to the Chief Administrative Officer of the U.S. House of Representatives. The majority of his colleagues on the panel ruled that the employee had the right to sue. Kavanaugh disagreed.