Fifth Circuit Nominee Pressed on Rulings Against Women Plaintiffs

The United States Capitol in Washington, D.C.

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.

Hirono continued.

“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.

“You did [look to comparisons in the workplace.] In this case, she had to show she was treated worse than a non-pregnant employee and when she was fired for taking 16 weeks to protect the life of her child, you pointed out a that a male colleague was granted [leave] for stubbing his toe but wasn’t fired. You determined she was not treated any worse than he was,” Harris said.

Engelhardt apologized for being unable to explain the ruling.

He was also unable to explain a 2011 decision in which he found “sensual backrubs” performed on a female employee by her female supervisor did not constitute “actionable harassment.”

Echoing Hirono, Harris asked Engelhardt to share his definition of allegations that would be egregious enough to be considered a physical threat.

“Most are close cases … You think, ‘this is horrible conduct’ but insofar as that particular opinion … Things that are unacceptable in the workplace don’t always survive the test set forth in Title VII of the Civil Rights Act,” he said.

How did he generally define what is physically threatening, Harris asked.

“We try to establish a spectrum of cases where certain conduct is cataloged in terms of how it becomes actionable. We don’t decide these cases in a vacuum,” he replied.

Sen. Richard Blumenthal, D-Conn., focused on a speech Engelhardt gave to the Federalist Society in 2010.

During the speech, Engelhardt referred to Supreme Court Justice Clarence Thomas’ dissent in Lawrence v. Texas, a ruling that struck down the state’s sodomy laws.

“You praised [his dissent] as an example of ‘one man’s submission of personal preference in favor of adherence to constitutional principle,’ and as you know, [Thomas] dissented … in that case because he believed the court had no constitutional power to strike down the Texas law. What did you mean [by your praise]?” Blumenthal asked.

Engelhardt said it wasn’t praising Thomas, but instead was using the dissent as a way to speak about the separation of powers.

“[I was speaking to] his personal feelings and [how it] would have to be submitted to the constitutional principle but that it wasn’t up to him,” Engelhardt said.

When it came to Roe v. Wade, Engelhardt assured the committee he would respect the laws handed down by the Supreme Court.

“I think those opinions are controlling opinions; Roe, and their progeny, are controlling, binding precedent. I, as a district judge taken an oath to apply them, they are the law. I will fulfill my oath as a circuit judge as I have done a district judge,” he said.

In addition to Engelhardt, the committee also considered the judicial nominations of Barry Ashe, Howard Nielson Jr. and James Sweeney II.

Senators posed few questions to Sweeney, nominated as judge for the Southern District of Indiana, and far fewer to Ashe, the president’s pick to fill a vacancy in the Eastern District of Louisiana.

But Nielsen stayed in lawmakers focus, particularly, Democratic senators who homed in on his 2010 defense of Proposition 8, a California ballot initiative which only recognized a “marriage” as being between a man and woman.

In a case he handled, Nielson purportedly argued homosexuality was a choice and said presiding Judge Vaughn Walker should have recused himself from ruling on the matter because he had a vested interest: Walker was gay and in a long-term relationship.

Sen. Amy Klobuchar, D-.Minn. , said she was troubled by this history.

“Would it follow that an African-American judge would have to recuse himself from a civil rights case or a female judge from a sexual harassment case?” Klobuchar asked.

Nielson told the senator no one needs to recuse themselves because of their status. Rather it should be determined on a case-by-case basis.

“The positions I take in litigation are those of my clients and in this case I was a junior member of a legal team and ultimately, they made the call of what argument was to be made in consultation with the client. This argument was within the fair bounds of advocacy,” Nielsen said.

Senate Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, dismissed Klobuchar’s questioning and defended Nielsen.

“Your opponents use this familiar tactic, claiming arguments you’ve made will bias you as a judge,” Hatch said. “I reject this tactic which is largely driven by a dangerous political view of the judiciary: the view [that what a] lawyer expresses in litigation belongs to him, not his clients.”

He added: “Those claiming it was suggested [in the documents] that [Judge Walker] be disqualified because he was gay – the motion did not seek that.”

Sen. Blumenthal told Nielsen that he, a former attorney, accepted that lawyers do not always share their client’s beliefs and are sometimes forced to argue issues they disagree with.

“But we do choose our clients and the arguments we make on behalf of them,” he said.

Blumenthal asked Nielsen if he agreed with then-candidate Donald Trump’s assertion during the 2016 campaign that Judge Gonzalo Curiel, of Mexican descent, would be unable to render a fair decision in a case involving Trump because he made public remarks about Mexicans.

“The law is clear that no one needs to recuse themselves because of their status,” Nielsen said.  “In Walker’s case, there were other factors involved … he had been in a committed long-term relationship for 10 years and had not disclosed whether he intended to benefit personally.

“That’s the position of my clients but I did feel it was within the fair bounds of advocacy.  Legal ethics expert Jack Marshall agreed with that, even though he strongly agreed that Proposition 8 is unconstitutional,” Nielsen said.

Neilsen, a partner at Cooper & Kirk in Washington, also rejected Sen. Harris’ declaration that he personally argued homosexuality was a choice. The transcripts showed Nielsen suggesting homosexuality is a “maladjustment.”

But this is not his view today, he said.

“Sexual orientation is not a matter of choice. I was representing the view of clients and that quote was from cross-examination and from a study read into evidence from a psychologist who the plaintiff’s expert said had a reputation in good standing,” Nielsen said.


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