Judge Richard Posner’s Retirement and His Influence on Labor and Employment Law

By Gary Peeples

Judge Richard Posner surprised (nearly) everyone by, on Friday, September 1, 2017, announcing that he would be retiring outright as of the next day. It would require a library’s worth of books to catalog the ways in which Judge Posner has shaped the law over his thirty-five years as a judge on the United States Court of Appeals for the Seventh Circuit. This article is a modest attempt at discussing Judge Posner’s influence on labor and employment law.

With all due respect to (the late) Justice Antonin Scalia and Judge Frank Easterbrook, also of the Seventh Circuit, Judge Posner is the best writer who’s ever served as a federal judge. Every article about Judge Posner ought to begin with an example of his opinion writing style, which is accessible, informal, sharp, and (often) witty. Below is an example from a 1988 case (Aqua-Chem, Inc. v. NLRB) involving permanent replacement workers who were hired during a strike:

Even if the result were correct, the method of reaching it would be awful. It depends on a balancing test the outcome of which cannot be known in advance and which therefore leaves at sea both the employer, who cannot know what offers it can make to permanent replacements, and the replacement workers themselves, who cannot know what offers made to them are valid.

The role of the replacement worker is fundamental in contemporary labor relations. The panel’s decision muddies that role, unsettles the law, buries the rights of management and labor alike in uncertainty and confusion. We should rehear the case en banc.

(Posner, J., dissental).

Turning now to Judge Posner’s influence on labor and employment law, his most famous opinion in this area is a recent one, namely, his concurring opinion in Hively v. Ivy Tech Cmty. Coll. of Ind. The case—which attracted a huge amount of media coverage—involved an openly lesbian adjunct professor at an Indiana community college. According to the plaintiff, she was repeatedly denied promotions because of her sexual orientation. The question before the Seventh Circuit (sitting en banc) was whether discrimination on the basis of sexual orientation violates Title VII’s prohibition on sex discrimination.

Judge Posner’s concurrence is worth reading. Unlike the majority opinion, which goes out of its way to emphasize the commonalities between discrimination on the basis of sex (which is plainly prohibited by Title VII) and sexual orientation discrimination, Judge Posner in his concurring opinion concedes that Congress didn’t have sexual orientation in mind when they passed Title VII. Judge Posner instead argues that Title VII should be treated as a floor for common law (i.e., judge-initiated) development. Likening Title VII to the Sherman Act (a statute that judges have had no problem expanding over time), Judge Posner contends that as societal views evolve in America, so too should federal courts’ interpretation of Title VII’s scope. He writes: “Failure to adopt [an emerging interpretation of the word “sex”] would make the statute anachronistic, just as interpreting the Sherman Act by reference to its nineteenth-century framers’ understanding of competition and monopoly would make the Sherman Act anachronistic.” Well put.

Judge Posner has never hesitated to criticize federal agencies. Although his primary targets (at least recently) have been the Social Security Administration and its administrative law judges, Judge Posner has also criticized the National Labor Relations Board (NLRB) and, in particular, its cavalier approach to precedent and stability. Below are some of Judge Posner’s remarks on the NLRB from a 2000 lecture on labor law:

There is one constant in my experience with the “old” labor law, and that is the very poor quality of the decision of the National Labor Relations Board. The problem is independent of the party in power. It expresses itself in part in the extraordinary mode of opinion writing that is customary for the Board, and that is to adopt the administrative law judge’s opinion and merely indicate disagreement in footnotes. But more distressing than this methodological quirk is the irresponsible attitude of the Board toward its own precedents and the lack of any curiosity about the practical consequences of its doctrines.

Amen. Although Judge Posner offered these remarks in 2000, they proved to be prescient. In a recent Eighth Circuit case (Cooper Tire & Rubber Co. v. NLRB), the NLRB’s total lack of regard for the practical effects of its decisions was on display. The Eighth Circuit in Cooper Tire affirmed the NLRB’s position that Section 7 of the National Labor Relations Act permits locked-out employees to shout racial slurs at African-American replacement workers. That’s absurd and it illustrates precisely what Judge Posner was talking about in his 2000 lecture.

Judge Posner, at least for the first two decades or so of his judicial career, often worked economic analysis into his opinions and his other writings (books, law review articles, etc.). This focus on economics sometimes led to statements that, without context, seemed controversial. For example, in his 1995 book Aging and Old Age, Judge Posner questioned whether federal legislation was necessary to protect older workers from discrimination in employment:

Even apart from competitive pressures for rational behavior, which are considerable in private markets, the people who make employment policies for corporate and other employers and most of those who carry out those policies about hiring or firing specific workers are at least 40 years old and often much older. It is as if the vast majority of persons who established employment policies and who made employment decisions were black, federal legislation mandated huge transfer payments from whites to blacks [here Judge Posner is alluding to the transfer payments from the young to the old that occur as a result of Social Security], and blacks occupied most high political offices in the nation. It would be mad in those circumstances to think the nation needed a law that would protect blacks from discrimination in employment. Employers—who have a direct financial stake in correctly evaluating the abilities of their employees and who for the most part are not young themselves—are unlikely to harbor either serious misconceptions about the vocational capacities of the old (so it is odd that employment should be the main area in which age discrimination is forbidden) or a generalized antipathy toward old people.

A bold position indeed! Judge Posner has never been afraid of asking controversial questions or changing his mind (his concurrence in Hively is an example of that). In that respect, Judge Posner has put into practice Justice Frankfurter’s long-ago observation that “wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Judge Posner’s devotion to his cats (first Dinah and now Pixie, who according to Judge Posner might run for President in 2020) is legendary. And, in the context of employment discrimination, Judge Posner revealed his playful side in Shager v. Upjohn Co., a 1990 case involving alleged age discrimination by a seed company. In that case, the plaintiff argued (in part) that although the so-called “Career Path Committee” terminated his employment the committee had been dominated by the influence of the plaintiff’s supervisor, who (allegedly) wanted to get rid of older workers like the plaintiff. Here is how Posner described the background of the case, complete with a reference to the fable involving a monkey, a cat, and chestnuts in a dying fire:

Lehnst’s [i.e., the plaintiff’s supervisor’s] influence may well have been decisive. The committee’s deliberations on the question whether to fire Shager were brief, perhaps perfunctory; no member who was deposed could remember having considered the issue. A committee of this sort, even if it is not just a liability shield invented by lawyers, is apt to defer to the judgment of the man on the spot. Lehnst was the district manager; he presented plausible evidence that one of his sales representatives should be discharged; the committee was not conversant with the possible age animus that may have motivated Lehnst’s recommendation. If it acted as the conduit of Lehnst’s prejudice—his cat’s-paw—the innocence of its members would not spare the company from liability.

The cat’s paw doctrine was later adopted by the Supreme Court in a 2011 case, Staub v. Proctor Hospital (that case, incidentally, came from the Seventh Circuit too). Judge Posner accordingly deserves credit for the apt allusion and for the development of this procedural corner of employment law.

Judge Posner will remain important to future generations of lawyers for a number of reasons. For one thing, Judge Posner’s opinions, particularly those involving contracts, make up about half of the casebooks that law students use. Judge Posner’s contributions to labor and employment law aren’t as well-known as his contributions to other areas of the law (the economic analysis of law as it relates to torts is the most prominent example), but his contributions to labor and employment law are significant. We employment lawyers will miss him.

Gary S. Peeples, Attorney
Burch, Porter & Johnson, PLLC
gpeeples@bpj.com
www.bpj.com