Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Justice Ketanji Brown Jackson’s nomination to the Supreme Court is notable for several reasons. Not only is Justice Jackson the first African-American woman to serve on the Supreme Court, but she is the only member of the Court to have served as a Federal Public Defender. Justice Jackson’s appointment to the Court carries several ramifications and potential changes to the Court that encapsulate decision making on everything from criminal law to constitutional law to property law. The most notable implication of Justice Jackson’s appointment to the Supreme Court, strictly for the purposes of this article, is her effect on employment law. Justice Jackson has had a varied history in employment law. This article will delve into that history and discuss what effect, if any, the appointment Justice Jackson will have on employment law. 

Justice Jackson has issued decisions that have benefited unions. For example, in AFL-CIO v. Federal Labor Relations Authority, Justice Jackson invalidated a policy change made by the Federal Labor Relations Authority that effectively restricted the scope of workplace changes subject to collective bargaining. Again, during her time as a trial judge, Justice Jackson invalidated executive orders made by President Trump that imposed temporal limits on contractual negotiations between federal agencies and unions, limited the ability of federal employees in union activities whilst at work, and made it significantly easier for federal agencies to terminate employees. These are but a few of many examples of Justice Jackson’s rulings in favor of unions.

Justice Jackson’s rulings are significant in that her appointment could lead to more laws that favor unionization. Given the recent developments with Amazon and Starbucks (to name but a few), the United States may be on the cusp of experiencing a new era in labor activism. Justice Jackson’s appointment could be enough to usher the U.S. into that era or, at the very least, incentivize workers to further strive for that new era.

However, Justice Jackson’s decisions on workplace discrimination and retaliation do tend to be more varied. For example, in Raymond v. Architect of the Capitol, Justice Jackson granted an employer’s motion for summary judgment in a case alleging race and national origin discrimination. In this case, a three-person panel failed to select a black candidate of Jamaican descent for promotion. Justice Jackson found no evidence of discrimination, despite the fact that one panelist had made comments regarding the plaintiff’s national origin. Justice Jackson reasoned that there was no evidence, other than the employee’s testimony, that the comments had been made. In contrast, in Park v. Hayden, Justice Jackson denied an employer’s motion for summary judgment on a national origin discrimination case because she reasoned that the factual inconsistencies and credibility determinations needed to be resolved by a jury rather than a judge.

Similarly, with retaliation claims, Justice Jackson has had a varied history. For example, in Manus v. Hayden, Justice Jackson denied a plaintiff’s retaliation claim due to the lack of a causal connection. In this case, an employer was providing an employee with baseless critiques. Justice Jackson found that because the critiques began  prior to the protected complaint being filed, there was no causal connection. However, in Alma v. Bowser, another retaliation claim, Justice Jackson found in favor of the plaintiff and wrote a scathing opinion directed at the defendant.

Justice Jackson’s appointment is historic for several reasons, and she will undoubtedly leave a lasting impact in Supreme Court rulings. Focusing on her significance in employment law, however, does carry more uncertainty. Though Justice Jackson will, more than likely, aid in the progression of union and labor laws, her decisions regarding workplace discrimination and retaliation remain ambiguous given her history. One will have to keep a watchful, but hopeful eye on the new appointee.