Gorsuch’s Corporate Bias

By Erwin Chemerinsky

As a judge on the United States Court of Appeals for the Tenth Circuit, Neil Gorsuch’s opinions consistently have favored the interests of corporations over those of employees and consumers. Even when he is interpreting statutes that were meant to provide expansive protections for workers and customers, Judge Gorsuch construes the laws in favor of business. His rulings leave no doubt that if confirmed he will be a very conservative justice who will be strongly biased in favor of corporate interests.

There are many examples of this involving a number of different federal laws. For example, in Hwang v. Kansas State University, the Tenth Circuit considered whether it violated the Rehabilitation Act for a state to refuse to extend medical leave when an emergency required it. The Rehabilitation Act is a federal law that prohibits recipients of federal funds from discriminating against people with disabilities and requires reasonable accommodations of disabilities. Grace Hwang, a professor at Kansas State University, used the university’s maximum of six months’ leave as she underwent cancer treatment. When she was about to return to work, a flu epidemic occurred on the campus. She asked to extend her leave because of having a compromised immune system from chemotherapy. She said that this would be a “reasonable accommodation” of her illness.

The Tenth Circuit, in an opinion by Judge Gorsuch, ruled against her and said that this was not required as an accommodation to her illness. The court said, “Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address.” But this is not only hard-hearted, it is inconsistent with a federal statute designed to provide exactly the type of reasonable accommodation that Ms. Hwang requested.

Another opinion reflecting Judge Gorsuch’s pro-business orientation is TransAm Trucking, Inc. v. Administrative Review Board. The Department of Labor ruled in favor of a trucker who had been fired after refusing to drive a vehicle that was unsafe. The trucker reported to his employer that the brakes on his trailer had frozen and his cab’s heating unit was not working. The trucker waited three hours in subzero temperatures for the employer to send a repair truck. When “he realized his torso was numb and he could not feel his feet,” the trucker unhitched the trailer and drove to safety. He then was fired.

The United States Court of Appeals for the Tenth Circuit upheld the Labor Department’s decision in favor of the trucker because of a law protecting an employee from discharge if he or she “refuses to operate a vehicle [because of] reasonable apprehension of serious injury . . . because of the vehicle’s hazardous safety or security condition.” But Judge Gorsuch dissented, arguing that the statute did not apply, because the trucker had not “refused to operate” the vehicle, but instead had operated the vehicle “in a manner he thought was wise but his employer did not.” Again, not only was Judge Gorsuch’s opinion cruel because the trucker had no other safe choice in that situation, but also it was inconsistent with a federal law meant to protect the worker.

Yet another example is Compass Environmental, Inc. v. Occupational Safety & Health Review Commission. The Tenth Circuit, over Judge Gorsuch’s dissent, upheld a Department of Labor fine against a company that failed to properly train a worker, resulting in his death by electrocution. Gorsuch’s dissent claimed that there was no evidence to show that industry standards would have required more training. But the company’s own job hazard analysis found “fatal danger” from the high-voltage power lines involved and had recommended training for employees. Training had been given to some employees, but the employee who was killed did not get it because he started working after the training had occurred.

These three cases each involve different federal laws. But they all share common features: Judge Gorsuch ruled in favor of business over injured employees, interpreting statutes meant to protect workers very narrowly. All show a stunning lack of empathy that should be expected of a judge and a Supreme Court justice.

The consistent pattern of Judge Gorsuch’s votes and opinions in favor of business are very troubling. Some, such as Harvard Professor Noah Feldman, have argued that this criticism wrongly expects Judge Gorsuch to be biased in favor of employees and consumers. Quite the contrary, the concern is that Judge Gorsuch is not neutral, but rather strongly favors corporate interests.

Moreover, it must be remembered that these statutes all were meant to protect employees. The fact that Judge Gorsuch so consistently interprets these laws to rule in favor of business interests shows his strong pro-business bias. Professor Feldman is right that we want the federal courts, and the Supreme Court, to be a neutral and fair playing field, but Neil Gorsuch hardly will be neutral or fair as a justice.

Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law, with a joint appointment in Political Science.