By Matt Brown and Benjamin Hepner
Justice Ketanji Brown Jackson was recently confirmed as the 116th associate justice of the United States Supreme Court. With the appointment of a new justice on the Court, human resources professionals are inquiring about Justice Brown’s potential impact on legal precedent in employment and labor law, and on the important issues facing employers today.
Meet Justice Jackson
Justice Jackson is the first Black female justice and only the sixth female justice and is also the first former federal public defender to serve on the nation’s highest court. Justice Jackson will also be the second-youngest jurist at the Court and made it a point to discuss her role as a parent during her confirmation hearings.
Justice Jackson obtained her undergraduate and law degrees from Harvard University. She has served as a law clerk at the U.S. District Court for the District of Massachusetts (Judge Patti Saris), the U.S. Court of Appeals for the First Circuit (Judge Bruce Selya), and the United States Supreme Court (Justice Breyer). In addition to her time in private practice, Justice Jackson served as special counsel to the United States Sentencing Commission in two separate capacities and as a federal public defender.
Justice Jackson was appointed to the U.S. District Court for the District of Columbia in May 2013. In April of 2021, Justice Jackson was confirmed for a vacant seat on the U.S. Court of Appeals for the D.C. Circuit where she served until her recent appointment to the United States Supreme Court. In her time on the bench, Justice Jackson authored well over 500 opinions. Those opinions have touched on a wealth of legal issues and may provide some context and insight as to how she may approach employment and labor law issues that may be presented to the Court. From her past rulings, Justice Jackson appears to treat employees and employers evenly and commonly relies upon past precedent to support her decisions.
Employment Issues Facing Employers in the Southeast
The Bureau of Labor Statistics projects that an estimated 11.9 million jobs will be added from 2020 to 2030. Several areas are expected to experience post-pandemic growth, and some areas are expected to experience growth based upon market expansion that is totally unrelated to the pandemic.
The Southeast has seen a rapid increase in population over the last several years. Based upon the 2020 Census Report, the population in the South grew by an astounding 10.2% since 2010. This figure outpaced all other regions in the 2020 Census. South Carolina (10.66%) and Florida (14.56%) were among two of the top ten states experiencing the largest population growth captured by the 2020 Census. Several other states in the Southeast experienced population growth including North Carolina (9.5%), Tennessee (8.9%), Maryland (7.9%), Georgia (5.1%) and Kentucky (3.8%).
However, despite the influx of new residents and potential additions to the workforce, several industries in the Southeast have experienced rapid growth resulting in a substantial and continually growing need for employees. Several southeastern states have offered economic benefits for companies to help entice them to move south of the Mason-Dixon line. Other southern states have also established large-scale initiatives to bring new industries to their states resulting in a more diverse workforce.
Many southern states, including Virginia, North Carolina, South Carolina, Georgia and Tennessee, have been successful in enticing large companies to relocate to the Southeast and others have seen significant investments and expansions from companies already located in their respective states.
In addition to the influx of new corporate headquarters and the relocation of production sites, several states have seen an influx of new industries such as IT/technology companies in Tennessee, FinTech in Georgia, aeronautics manufacturing in South Carolina, and biomedical manufacturing in North Carolina.
With new employers and new industries throughout the Southeast, employers will likely see their workforce continue to diversify as the region grows in population and diversity. With this added diversity comes new challenges to existing policies geared towards anti-discrimination, anti-retaliation, and other employment issues. Furthermore, a more diverse workforce may lead to new issues centered upon diversity, equity and inclusion, gender issues, pay equity, and other more modern issues for employers.
Justice Jackson on Labor and Employment Issues
In employment matters such as discrimination, harassment and retaliation claims arising under Title VII, the ADA, the ADEA, and other federal statutes, Justice Jackson’s prior rulings appear to be relatively consistent. She has shown a willingness to issue pro-employer rulings resulting in complete dismissal of employee claims. However, Justice Jackson is also no stranger to issuing pro-employee rulings when warranted and has shown a willingness to do so even in “close cases” like she did in Drasek. Her past rulings do not indicate that she favors employees over employers or vice versa.
For example, in the context of employment discrimination claims, Justice Jackson has shown that she is willing to rule in favor of employers in the face of less-than-desirable factual scenarios. In Ng v. LaHood, Justice Jackson granted summary judgment in favor of an employer despite what she characterized as “troubling” allegations in the context of a discrimination claim. In Raymond v. The Architect of the Capitol, another discrimination case, Justice Jackson granted a motion for summary judgment in favor of an employer even where there was evidence of potential discrimination against an employee. In both cases, Justice Jackson showed a clear command over the analysis needed to rule on the issues presented and both opinions were well-reasoned and favorable for employers.
At least one opinion indicates Justice Jackson can be sympathetic to labor unions. In American Federation of Government Employees v. Federal Labor Relations Authority, Justice Jackson’s first signed opinion as a judge on the D.C. Court of Appeals, she wrote the opinion for the court that struck down a rule change promulgated by the Federal Labor Relations Authority in favor of a rule more favorable to labor unions.
Modern Challenges for Employers
Justice Jackson will certainly bring a new perspective to the Court, which will most likely take centerstage in the Court’s analysis of more “modern” legal issues in the workplace.
The Supreme Court is set to hear an affirmative action case in the upcoming 2022-2023 term. The case, Students for Fair Admissions v. President and Fellows of Harvard College,involves a challenge to a race-conscious admissions policy. Justice Jackson indicated that she would recuse herself from this case given her ties to Harvard.
However, the Court has recently decided to hear a similar case involving policies geared towards diversity in admissions at the University of North Carolina Chapel Hill. This case may provide some insight into Justice Jackson’s perspective on issues related to race and present some indication of her stance on other issues like gender, sexual orientation, and other more modern legal topics including those arising in the employment and labor context like pay equity and others.
Conclusion
Justice Jackson will assume her seat for the 2022-2023 term that begins on October 3, 2022. Her tenure on the nation’s highest court could very well see several new legal issues that arise in the context of labor and employment law. With the ever-changing employment landscape, there is no doubt that Justice Jackson will play a long-term role in shaping the future of the legal landscape of our workplaces.
