Justice Kavanaugh’s first SCOTUS opinion may speak volumes on how he’ll decide the next big employment case

Judge Brett Michael Kavanaugh

U.S. Court of Appeals for the District of Columbia Circuit [Public domain], via Wikimedia Commons

Yesterday, Supreme Court Justice Brett Kavanaugh delivered the opinion for a unanimous Supreme Court in a case called Henry Schein, Inc. v. Archer & White Sales, Inc.  Although the Court’s decision has nothing to do with employment law — it’s a case about antitrust issues and arbitration — there’s a little something from Justice Kavanaugh’s that may be more than a little something.

At least as it relates to a big employment case that could be coming down Supreme Court Boulevard in 2019.

Here’s the money shot from page nine of this ten-page opinion, with my emphasis on the underlined passage:

In cases like this, as Archer and White seesit, the arbitrator will inevitably conclude that the dispute is not arbitrable and then send the case back to the district court. So why waste the time and money? The short answer is that the Act contains no “wholly groundless” exception, and we may not engraft our own exceptions onto the statutory text.

There are a series of related employment cases that the Supreme Court is currently considering for review.  In this one and this one, the issue is “[w]hether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination ‘because of . . . sex’ encompasses discrimination based on an individual’s sexual orientation. In this one, the issue is “[w]hether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of . . . sex,’ 42 U.S.C. § 2000e-2(a)(1), meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.

We may know as soon as January 11, which, if any, of these cases the Supreme Court will accept.

We may not engraft our own exceptions onto the statutory text.

What do you think a Supreme Court justice who uses those words would have to say about a federal statute that explicitly prohibits employment discrimination “because of . . . sex,” but is silent about discrimination because of sexual orientation or gender identity?

I guess we’ll see…

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