Although she has not been as directly involved in other civil rights issues as she was during the Reagan Administration, two articles concerning employment discrimination that Kuhl authored when she was in private practice raise serious concerns about her philosophy toward protecting employees from non-merit based employment decisions as well as remedying discrimination. In one, Kuhl made clear that she is opposed to affirmative action, which she called “a divisive societal manipulation.” (Ashkenazy v. Liu, No. BC 149503). According to Kuhl, “[i]n my view, the generalized preferences based on race or sex that are commonly termed ‘affirmative action’ are not a desirable remedy for discrimination.” (Ashkenazy v. Liu, No. BC 149503). In the same article, she also appeared critical of the outcome in Local 28 of the Sheet Metal Workers’ International Ass’n v. EEOC, 478 U.S. 421 (1986), the case in which, as discussed above, she had unsuccessfully urged the Supreme Court to hold that relief in Title VII cases can be granted only to identifiable victims of discrimination.
In another article, “Employment at the Will of the Courts,” Kuhl appeared to disapprove of the trend in the law away from the doctrine of “employment at will” and toward protecting employees, including, to use her phrase, employees who are “white, male and non-union,” from adverse employment decisions that are not based on “good faith and fair dealing.” (Ashkenazy v. Liu, No. BC 149503). According to Kuhl, “[t]he practical effect of this jurisprudence and of the destruction of the doctrine of employment at will is to inhibit employer action and to decrease labor mobility.” (Ashkenazy v. Liu, No. BC 149503). The article also appears to question some of the positive effects of anti-discrimination laws:
[I]f a member of a protected class is fired, and if the employer has no credible explanation for his treatment of the employee . . . a finder of fact may well conclude that the unexplained motivation is in reality an unlawful one (race, sex, age, etc.). . . Employers must act toward employees in the protected classes in such a way that they can explain the fairness of their actions toward the employee. If an employer cannot do so, he risks the expense of a lawsuit and statutory penalties. (Ashkenazy v. Liu, No. BC 149503).
Most Americans would likely conclude that this is a good thing; Judge Kuhl does not say that it is.