Kavanaugh Is Terrible on Workers’ Rights—And That’s Anti-Woman, Too

Julianne Tveten

Brett Kavanaugh appears before the Senate Judiciary Committee during his Supreme Court confirmation hearing in the Hart Senate Office Building on Capitol Hill September 4, 2018 in Washington, DC. (Photo by Drew Angerer/Getty Images)

On Octo­ber 6, the Sen­ate vot­ed to con­firm Brett Kavanaugh, the Repub­li­can fed­er­al appel­late judge accused by mul­ti­ple women of sex­u­al assault, to the Supreme Court.

In light of the alle­ga­tions — which include attempt­ed rape — the oppo­si­tion to Kavanaugh has been dom­i­nat­ed by con­cerns about the impact he will have on the lives of women. In addi­tion to his alleged his­to­ry of phys­i­cal and sex­u­al vio­lence, pro­test­ers fear what Kavanaugh’s rad­i­cal” con­ser­vatism may augur for repro­duc­tive-rights vic­to­ries, name­ly Roe v. Wade, the land­mark 1973 deci­sion that expand­ed the legal right to abor­tion in the Unit­ed States. Yet these don’t con­sti­tute the only per­ils of the judge’s appoint­ment: Kavanaugh bears a pat­tern of anti-work­er adju­di­ca­tion — a stance that inor­di­nate­ly harms women. 

Kavanaugh’s cat­a­log of judi­cial deci­sions indi­cates a clear predilec­tion for the cap­i­tal­ist class. In 2008’s Agri Proces­sor Co. Inc. v. Nation­al Labor Rela­tions Board, Kavanaugh argued that a kosher-meat whole­saler, Agri Proces­sor Co., wasn’t required to bar­gain with an employ­ee union. Before the suit, the Unit­ed Food and Com­mer­cial Work­ers Union, filed an unfair labor prac­tice charge with the Nation­al Labor Rela­tions Board (NLRB) after Agri Proces­sor Co. refused to bar­gain. Kavanaugh upheld the company’s claim that the work­ers who had vot­ed in the union elec­tion were undoc­u­ment­ed work­ers and there­fore didn’t qual­i­fy as employ­ees” pro­tect­ed by the Nation­al Labor Rela­tions Act — and thus were pre­vent­ed from union­iz­ing, so their votes in the union elec­tion were invalid.

There are numer­ous oth­er exam­ples of Kavanaugh issu­ing anti-work­er rul­ings. In 2015, Kavanaugh ruled in favor of a Las Vegas casi­no that request­ed that police offi­cers issue crim­i­nal cita­tions against demon­stra­tors protest­ing the lack of col­lec­tive-bar­gain­ing rights of casi­no employ­ees. And in 2013, he argued that a Black woman, LaTaun­ya Howard, couldn’t pur­sue a race dis­crim­i­na­tion suit after being fired from her posi­tion at the Office of the Chief Admin­is­tra­tive Offi­cer of the U.S. House of Rep­re­sen­ta­tives for insub­or­di­na­tion.” Howard alleged that her ter­mi­na­tion was both racial­ly moti­vat­ed and in response to com­plaints she’d made about racial pay dis­par­i­ties at her place of work. What’s more, Kavanaugh helped thwart an NLRB order that would have required the Trump Plaza Hotel and Casi­no to bar­gain with the Unit­ed Auto Workers. 

This anti-labor posi­tion­ing is par­tic­u­lar­ly inju­ri­ous to women, who ben­e­fit dis­pro­por­tion­ate­ly from union mem­ber­ship. The Insti­tute for Women’s Pol­i­cy Research found that women cov­ered by a union con­tract earn an aver­age of 30.9 per­cent more per week that women with non-union jobs, com­pared to men’s increase of 20.6 per­cent. Cor­re­spond­ing­ly, the wage gap between men and women work­ers is more nar­row among those with union rep­re­sen­ta­tion than those with­out it. The Eco­nom­ic Pol­i­cy Insti­tute report­ed last year that female union work­ers earn 94 cents for every dol­lar their male peers earn, ver­sus 74 cents on the dol­lar with­out union safeguards. 

Kavanaugh also has a his­to­ry of jeop­ar­diz­ing the work ben­e­fits that inform earn­ings. Work­ers with union rep­re­sen­ta­tion enjoy greater access to fam­i­ly, med­ical and mater­ni­ty leave — an advan­tage for women, who are more often tasked with child and elder care than men, and often lose wages as a result. Union­ized women are much more like­ly to have at least par­tial­ly paid health insur­ance than those who aren’t union­ized: Notably, 73.1 per­cent of women in union jobs have employ­er- or union-pro­vid­ed health insur­ance, an advan­tage only 49.1 per­cent of their non-union coun­ter­parts receive. It’s vir­tu­al­ly the same case for retire­ment: The ratio of union­ized to non-union­ized women with employ­er-spon­sored plans is 74.4 per­cent to 41.8 percent.

If unions and earn­ings among women are to be exam­ined, it’s nec­es­sary to con­sid­er the huge impact a fig­ure like Kavanaugh could have on Black women. Though the union­ized work­force has decreased pre­cip­i­tous­ly over the last sev­er­al decades, Black women have tra­di­tion­al­ly had a high­er rate of union­iza­tion, par­tic­u­lar­ly in pub­lic-sec­tor jobs, than women of oth­er racial and eth­nic groups. As of 2013, Black women out­num­bered white, Lat­inx and Asian-Amer­i­can women in terms of union­iza­tion. And by 2015, union­ized Black women out­num­bered union­ized Black men. 

This is essen­tial for a demo­graph­ic that, research shows, would have to work an addi­tion­al sev­en months to receive the same pay as white men, despite work­ing more hours than white women. (Black women are also paid less than white men for the same job, inde­pen­dent of edu­ca­tion level.) 

The same urgency for pro­tec­tions applies to Lat­inx women, who are now the least like­ly of all women to have union rep­re­sen­ta­tion. Sta­tis­tics show that they’re in the most dire need of the boons of orga­nized labor: Lat­inx women, for exam­ple, make 54 cents for every dol­lar earned by white men. As Esther López of Unit­ed Food and Com­mer­cial Work­ers urges, There exists a sure-fire way for Lati­na women to earn the bet­ter wages they deserve: join­ing a union in their indus­try. Lati­na women who have joined a union earn more than their non-union coun­ter­parts—$242 more per week, in fact, accord­ing to the Bureau of Labor Statistics.”

Anoth­er con­cern aris­ing from Kavanaugh’s anti-labor record — and one par­tic­u­lar­ly point­ed in the wake of the alle­ga­tions levied against him — is women’s vul­ner­a­bil­i­ty to work­place sex­u­al harass­ment. The Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion found that 25 per­cent to 85 per­cent of women report hav­ing expe­ri­enced sex­u­al harass­ment in the work­place.” Echo­ing López, writer Michelle Chen con­tends that col­lec­tive bar­gain­ing is a viable means of com­bat­ing this. Union agree­ments,” she writes, pro­tect equal­i­ty at work, pro­vide every­day orga­ni­za­tion­al sup­port for work­ers, and pro­mote pub­lic account­abil­i­ty by estab­lish­ing legal­ly bind­ing con­di­tions of employ­ment,” and can pur­sue such mea­sures as munic­i­pal anti-harass­ment ordinances.

Heed­ing Kavanaugh’s ros­ter of rul­ings, the AFL-CIO, Com­mu­ni­ca­tions Work­ers of Amer­i­ca, Nation­al Nurs­es Unit­ed and oth­er unions have for­mal­ly opposed the now-Supreme Court asso­ciate jus­tice. NNU has cit­ed spe­cif­ic con­cerns for women, stat­ing his assaults on col­lec­tive bar­gain­ing rights and work­ers’ health­care ren­der him unfit to serve on the Supreme Court of the Unit­ed States.” The sub­text is that women will pay the great­est price.

Julianne Tveten writes about tech­nol­o­gy, labor, and cul­ture, among oth­er top­ics. Her work has appeared in The Nation, Cap­i­tal & Main, KPFK Paci­fi­ca Radio, and elsewhere.
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