WASHINGTON (CN) – Kurt Engelhardt, President Donald Trump's nominee for a seat on the Fifth Circuit, on Wednesday defended a pair of rulings against female plaintiffs in sexual harassment and pregnancy discrimination cases, by saying as egregious as the claims were, they just didn't pass legal muster.
Engelhardt is a member of the New Orleans Chapter of the Federalist Society and was elevated to the federal bench by President George W. Bush in 2001 after several years in private practice.
During Wednesday's hearing, Sen. Mazie Hirono, D-Hawaii, pressed Engelhardt to explain why he rejected a 2004 case brought by the Equal Employment Opportunity Commission on behalf of a female security officer at Rite Aid.
She claimed her male co-workers cupped her breasts, asked to go home with her and brushed up against her.
“You denied her claim because you found the harassment was neither ‘severe nor physically threatening and the plaintiff liked her job and performed well in it,’” Hirono quoted Engelhardt’s ruling. “Is it your view that a woman who likes her job or does her job well cannot bring a claim because it has not interfered with work performance?”
Engelhardt emphatically told the senator he did not agree.
“Yet you pointed out the harassment was 'not physically threatening.' Is cornering an employee like [she was] not physically threatening?” Hirono said.
Engelhardt responded: “No, senator. Sometimes the recitation of facts and opinions are egregious factual circumstances and when you review facts prior to applying the law, the facts jump out at you as being particularly offensive. But there are a number of other factors that go into making it a compensable claim. It’s not as simple as submission to that type of egregious conduct.”
Hirono responded by saying she could not understand why he felt obligated to point out that the men’s behavior was “not physically threatening.”
Engelhardt said he could not remember the specifics of the case.
“I try to recount all of the facts that are brought to my attention as well as the arguments being made about those facts,” he said, telling the committee he would review the cases again.
Another Democrat, Sen. Kamala Harris, of California, asked Engelhardt to explain his ruling against a woman who sued her employer for pregnancy discrimination.
In Taylor v. Joton Paints Inc., the plaintiff was put on bed rest for 16 weeks due to pregnancy complications. She was fired two weeks after giving birth. Alleging discrimination, Taylor cited an example of unfair treatment: a male colleague who took medical leave for 16 weeks because of a gangrenous toe and was not fired upon his return.
“You ruled in favor of the employer,” Harris said, before quoting Engelhardt’s 2009 ruling .“You said, 'the fact that plaintiff’s absence was cause of pregnancy does not dispense with the general requirement that employees must show up for work.'”
Engelhardt said he could not recall the specifics of that ruling either, offering, “generally, there are other employees and comparisons to show there is some special effort made to punish or deprive a person of their position.”
“I look to cases in the circuit. I wish I could be more specific,” he said.