What Judge Jackson’s Appointment to the U.S. Supreme Court May Mean to Employers and Workplace Cases

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As the Senate confirmation hearings for Judge Ketanji Brown Jackson approach, it’s history in the making. But how will the new Justice of the U.S. Supreme Court impact future workplace-related cases?

On February 25, 2022, President Biden announced his nomination of Judge Jackson for the job to replace retiring Justice Stephen Breyer on the Supreme Court, after choosing from three highly qualified finalists, who included Judge J. Michelle Childs, a federal judge in South Carolina, and Justice Leondra Kruger, of the California Supreme Court.  

With her confirmation expected after the Senate hearings that are set to begin on March 21, Judge Jackson is making history. She will be the first Black woman to serve on the Supreme Court and her confirmation will mark the first time in the 233-year history of the nation’s highest court when the majority of justices is not made up of white men.

While Judge Jackson’s confirmation will retain the Supreme Court’s 6-3 ideological balance, employers still might wonder if the new Justice on the Supreme Court bench will alter the dynamic of future workplace-related cases. In an effort to address that question, this article looks at Judge Jackson’s record as a judge and some of her rulings in employment matters as they may offer some insight into future decisions.

Judge Jackson graduated from Harvard University and Harvard Law School, where she was an editor of the Harvard Law Review. She began her career with three judicial clerkships, including her clerkship for Justice Breyer. She also served on the U.S. Sentencing Commission, the agency that develops federal sentencing policy, worked in private practice in Washington, D.C., and Boston, and was an assistant federal public defender for several years.

As a seasoned attorney, Judge Jackson was nominated for a federal district court judge position on the D.C. district court in 2012 by former President Obama and was confirmed in 2013.  She served in that position for eight years until last year when she was nominated by President Biden for a seat on the U.S. Court of Appeals for the District of Columbia Circuit and confirmed by the Senate last June.

During her years as a federal district court judge, Judge Jackson presided over several employment matters, in which her rulings were by the book and generally moderate. As such, while Judge Jackson may be touted as the preferred choice of more left-leaning lawmakers, it is not a surprise to court watchers that Judge Jackson not infrequently has ruled in favor of defendant-employers as a district court judge presiding over workplace cases.

For example, Judge Jackson on several occasions has found that the law and facts warranted granting summary judgment in favor of defendant-employers in discrimination cases even in the face of “troubling” allegations:

• In Snowden v. Zinke, the plaintiff brought a Title VII action alleging that his former employer discriminated against him on the basis of race when it demoted him and later terminated his employment and retaliated against him for filing an Equal Employment Opportunity complaint that challenged his demotion. Judge Jackson granted summary judgment to the employer on the grounds that the plaintiff’s alleged evidence of pretext was insufficient. Among other things, Judge Jackson found that the 16 individuals that the plaintiff had identified as comparators in alleged support of his disparate treatment claim were inadequate as matter of law. Snowden v. Zinke, 506 F. Supp. 3d 18 (D.D.C. 2020).

• In Johnson v. Perez, the plaintiff brought race discrimination and racially hostile work environment claims under Title VII against his former employer. Judge Jackson granted summary judgment to the employer, reasoning that the plaintiff’s alleged evidence of pretext was insufficient. More specifically, Judge Jackson held that the reasons given for the plaintiff’s termination were not conflicting and that the plaintiff’s allegations were insufficient to support his race discrimination claim. While Judge Jackson found an issue of fact with respect to the plaintiff’s job performance, the factual dispute did not outweigh the lack of evidence for the allegation that the adverse action was pretext for race discrimination. Johnson v. Perez, 66 F. Supp. 3d 30 (D.D.C. 2014), aff’d, No. 15-5034, 2015 WL 5210265 (D.C. Cir. July 1, 2015).

• In Raymond v. Architect of the Capitol, the plaintiff sued his employer, alleging that he was not selected for a higher-grade position because of discrimination based on national origin and age, in violation of Title VII and Age Discrimination in Employment Act. Judge Jackson granted summary judgment for the employer, reasoning that there was no inference of discrimination related to a panel’s failure to select the plaintiff for the promotion where the plaintiff had alleged that one of the panelists had made comments related to the plaintiff’s national origin before. Judge Jackson noted that, while discriminatory comments may raise an inference of pretext, the facts and circumstances did not permit an inference that the alleged comments by one panelist tainted the selection process. She also noted that there was no evidence, other than the plaintiff’s own testimony, that the comments had even been made. Raymond v. Architect of Capitol, 49 F. Supp. 3d 99 (D.D.C. 2014).

• In Ng v. LaHood, the plaintiff sued his employer, alleging under Title VII that he was subjected to discrimination and retaliated against based on his race and national origin. Judge Jackson granted summary judgment for the employer on the grounds that the plaintiff had failed to establish an inference of discrimination where the plaintiff alleged that his coworkers complained of difficulty understanding his speech and mimicked his accent. She noted that the allegations were “troubling,” but found that the plaintiff had failed to “tie them in any way to the completely separate incidents that form[ed] the basis of his claims.” Ng v. Lahood, 952 F. Supp. 2d 85 (D.D.C. 2013).

For the same reasons, Judge Jackson also has not been hesitant to deny a defendant’s motion for summary judgment in discrimination actions when she has found that a genuine dispute of material fact required that the case move forward to a jury determination:

• In Mitchell v. Pompeo, for example, the plaintiff sued, alleging that her former employer had failed to accommodate her disability and instead had terminated her candidacy for a position as a special agent. Judge Jackson found that the plaintiff had not presented evidence that she could perform the essential functions of the special agent position, but that there still was a dispute of fact as to whether the employee could be accommodated with a re-assignment to another position. As such, summary judgment for the defendant was denied. Mitchell v. Pompeo, No. 1:15-CV-1849 (KBJ), 2019 WL 1440126 (D.D.C. Mar. 31, 2019).

• In Drasek v. Burwell, a former FDA employee with bipolar disorder sued, alleging that her termination violated the Rehabilitation Act (a statute with standards analogous to the Americans with Disabilities Act). The parties filed cross-motions for summary judgment. Judge Jackson held there was no evidence that the plaintiff was fired because of her disability or in retaliation for a protected activity. However, she also found that the plaintiff’s claim that the employer had failed to provide a reasonable accommodation should survive summary judgment because of a dispute of fact over whether the plaintiff could have been reassigned to accommodate her disability. Drasek v. Burwell, 121 F. Supp. 3d 143 (D.D.C. 2015).

• In Pierce v. District of Columbia, a deaf inmate who communicated with American Sign Language, but who had been forced to communicate with staff and other inmates only through lip-reading and written notes due to a lack of interpreters to assist him, sued the District of Columbia, alleging discrimination and retaliation in violation of the ADA and the Rehabilitation Act. Both sides moved for summary judgment. Judge Jackson ruled in favor of the plaintiff on the discrimination claims, finding that the prison staff engaged in intentional discrimination when they “did nothing to evaluate [the plaintiff’s] need for accommodation, despite their knowledge that he was disabled.” Pierce v. D.C., 128 F. Supp. 3d 250 (D.D.C. 2015).

Judge Jackson has presided over many more employment cases, and they are similarly characterized by a commitment to following precedent and to scrutinizing the facts closely.

It remains to be seen exactly how Judge Jackson’s appointment to the Supreme Court will affect the Court’s jurisprudence. At age 51, Judge Jackson likely will be on the bench for many years to come if confirmed. As such, her impact on the Supreme Court and on workplace-related cases cannot be predicted as her judicial philosophy evolves and the makeup of the Court changes. For now, however, a review of Judge Jackson’s record as a judge and some of her rulings in employment matters should offer some reassurances to employers that their side of the “v” will be given equal attention.