Seyfarth Synopsis: With Justice Neil Gorsuch joining the Supreme Court in April, and the apparent re-emergence of a 5-4 split, we expect to see the Court issue more expansive opinions and be less reticent to grant certiorari. The addition of Justice Neil Gorsuch is likely to have particular impact in the field of labor and employment law.

Since Justice Antonin Scalia’s death in February 2016, the lack of a ninth justice on the U.S. Supreme Court left the Court without a discernible majority of liberal or conservative justices. The four-four split between more liberal and more conservative justices led to two outcomes: first, some opinions contained narrower holdings than they otherwise may have in order to command a majority. Second, it appears the remaining eight justices voted more defensively on certiorari, as the outcome of cases may have been more difficult to predict. The addition of Gorsuch could impact a number of labor and employment cases currently pending or awaiting certiorari from the Court.

The most important employment law case on the Court’s docket is Epic Systems Corp. v. Lewis, No. 16-285. In Epic, the Seventh Circuit held that the inclusion of a class action waiver in an arbitration agreement violated the National Labor Relations Act, finding that participating in a class is a “concerted activity” protected by the NLRA. This holding is directly contrary to other circuit courts, which have found that class action waivers are enforceable under the Federal Arbitration Act.

In deciding Epic, the Court may provide further guidance on its approach to statutory construction, and make a key ruling affecting employers’ ability to channel disputes with employees to arbitration on an individualized basis. Although it is always difficult to prognosticate Supreme Court decisions, many observers believe that Justice Gorsuch is likely to favor arbitrability of disputes.

With other employment cases queueing up for Supreme Court review, Justice Gorsuch’s addition to the Court is likely to have an important impact on how cases are decided. Gorsuch has taken a strictly textualist approach to resolving matters of statutory construction, and has called into question Chevron deference. See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152 (10th Cir. 2016) (Gorsuch, J., concurring) (describing Chevron deference as an “abdication of the judicial duty”). For example, in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), then-Judge Gorsuch dissented from a finding that an employer trucking company impermissibly terminated an employee for operating a vehicle in contravention of the employer’s instructions, but who claimed to be doing so for his own safety. Because the statutory phrase provided protection for employees who “refuse[] to operate a vehicle,” Gorsuch asserted that the statute did not protect an employee who operated a vehicle against the employer’s instructions.

This strictly textualist approach may have substantial ramifications in labor and employment cases. Just last month, the Seventh Circuit found that Title VII of the Civil Rights Act protects lesbian, gay, and bisexual (“LGB”) employees from discrimination based on sexual orientation. See Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017). In Hively, the Seventh Circuit reasoned that an LGB person who is discriminated against because of the gender of her partners (i.e., a female employee who has a female partner is terminated, but a male employee who also has a female partner is not) has experienced discrimination because of sex. Although it appears that the employer in Hively is not planning to seek certiorari, there is a circuit split on this issue, and it is easy to imagine that this will soon be teed up for Supreme Court review. It is unclear whether Justice Gorsuch’s strict textualism would support the Seventh Circuit’s decision, but that may be unlikely.

Justice Gorsuch’s addition to the Court will also have impact on employers in other areas of the law that intersect with employment issues. For example, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, has been pending on the Supreme Court docket for an unusually long time, and certiorari has yet to be granted or denied. In Masterpiece, a baker was found to have violated Colorado’s Anti-Discrimination Act by refusing to bake a wedding cake for a same sex couple. The baker is seeking Supreme Court review, claiming that the anti-discrimination law violates the First Amendment and religious liberty protections.

While on the Tenth Circuit, Justice Gorsuch wrote a concurrence in Hobby Lobby in favor of expansive interpretations of religious liberty. However, with Justice Kennedy routinely writing watershed opinions in favor of legal protections for LGBT people, it is unclear how a case like Masterpiece Cakeshop would be decided, and considering the conflicting issues, whether there are four votes in favor of certiorari.

Becoming the 101st Supreme Court Justice, Neil Gorsuch is likely to have a tremendous impact on labor and employment cases. Stay tuned to this blog as we examine new decisions as they are handed down.