Judge Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court, may have a sneaking sympathy for companies that discriminate against women in the workplace.
That’s one conclusion to draw from a troubling anecdote recounted by Jennifer Sisk, a former law student of Gorsuch’s, in a letter sent to the Senate Judiciary Committee ahead of the judge’s confirmation hearing this week.
In a class discussion last year, Sisk said that Gorsuch pushed students to consider that women may manipulate employers by becoming pregnant, taking maternity leave and then quitting their jobs. (The judge was teaching a course on legal ethics and professionalism at the University of Colorado Law School.)
Companies have to ask women about their motherhood plans to protect themselves, Gorsuch said, according to Sisk’s account. He didn’t raise similar concerns about male employees, she said.
In a separate letter to the Judiciary Committee, another student, Will Hauptman, disputes Sisk’s story. So we don’t know for sure what happened or what Gorsuch believes based on this one account, which was first reported by NPR. But there’s certainly a lot to unpack in Sisk’s anecdote, because gender discrimination in the workplace remains a real problem.
At a minimum, someone needs to ask Gorsuch about this allegation at his hearing. The issue didn’t come up on Monday. (It did come up on Tuesday; see the update below.)
Sisk’s story suggests that Gorsuch may harbor some bias against women in the workplace and that he may not understand the reality for both working mothers and their employers, many of whom have found that offering more and better parental leave leads women to stay in their jobs.
But most disturbing is the idea that Gorsuch may not truly support current law. Treating women differently than men in the workplace solely based on the chance that a woman might have children is discrimination and has long been considered illegal.
Under federal law (Title 7 of the Civil Rights Act of 1964), employers cannot discriminate against workers because of their sex. The very first sex discrimination case the Supreme Court decided under Title 7 involved an employer that had a rule against hiring women with young children. The court in 1971 ― that’s more than 45 years ago ― found the rule was not OK because you can’t have different hiring rules for men and women.
“The one-sided set of questions focusing on women as mothers is something the Supreme Court has long rejected as unlawful,” Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center, told The Huffington Post. “If these statements are accurate, they are really disturbing in a number of ways and reflect a time in U.S. history that most of us thought we left behind,” she said.
Martin said another woman in Gorsuch’s class corroborated Sisk’s story, but wished to remain anonymous.
While the Supreme Court nominee’s stance on abortion and birth control (in the Hobby Lobby case) will no doubt get the bulk of attention from women’s advocates, his possible views on working women should not be ignored at his confirmation hearing. Sisk’s letter ― which was posted online by the National Employment Lawyers Association and the National Women’s Law Center ― was addressed to Sens. Chuck Grassley (R-Iowa) and Dianne Feinstein (D-Calif.), the chairman and the ranking member of the Judiciary Committee
As Sisk recalled, students in Gorsuch’s class last year were talking about a hypothetical case in which a woman with a lot of student debt was interviewing for jobs at law firms. The woman also planned on starting a family in the “near future.” The issue was what to tell her prospective employer.
Sisk said the question sparked a “lively” discussion in which students, both male and female, talked about the challenges of balancing work and family.
But, she said, Gorsuch took the conversation in another direction, implying that working women take advantage of maternity leave policies when they quit their jobs after their leave is over. According to Sisk, there was no consideration of other factors that can push working mothers out of law firm jobs ― from covert and overt bias to a work culture that is unforgiving to anyone who needs time outside of work.
“Judge Gorsuch outlined how law firms, and companies in general, had to ask female interviewees about pregnancy plans in order to protect the company,” Sisk wrote in the letter. “At least one student countered that an employer could not ask questions about an interviewee’s pregnancy plans. However, Judge Gorsuch informed the class that that was wrong.”
In fact, it is not illegal under federal law for an employer to ask a woman about her plans on parenting. But if the employer doesn’t hire someone who said she hopes, or plans, to have children in the near future, the question may later be used as evidence in a discrimination lawsuit against the company.
In addition, many states and even cities have laws prohibiting employers from making hiring decisions based on gender, caretaking status and other factors.
Some attorneys and other advocates argue these questions shouldn’t be asked at all. “Why would you ask if it wasn’t intended to inform your decision?” said Christine Tschiderer, staff attorney at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
Why not just ask a female job applicant if she’ll be able to put in the long hours or commit to the travel required by the job? Tschiderer said. Those questions would not be discriminatory. Asking if someone plans on getting pregnant is always going to be a question you only ask women.
Tschiderer, who’s worked on many pregnancy discrimination cases, said she believes pregnancy and parenting questions are more common than we realize, but they don’t often come up in court because it’s hard to prove why a particular person wasn’t hired.
In a statement, the University of Colorado Law School’s dean, S. James Anaya, said that administrators had met with Sisk to address her concerns about Gorsuch’s comments last spring and told her they would raise the issue with the judge after grades were submitted for the semester. That never happened, the school said, because of a transition of deans that occurred at the end of June.
“We apologize to the student who expressed the concern and to Judge Gorsuch for not bringing this matter to his attention last summer,” the school said.
Although sex discrimination is clearly illegal, it’s also far from uncommon. Just two years ago, the Supreme Court decided a case against UPS, which had refused to give pregnant women the same kind of work accommodations it offered male employees who got injured on the job. The court ruled that the woman had a claim and sent the case back for trial. (UPS may have seen the light in the meantime: It had changed the policy by the time the justices ruled on the case.)
And suspicion of women’s commitment to work is hardly uncommon either. A recent study found that law firms were less likely to hire certain women because of a belief they weren’t truly interested in working full-time.
UPDATE: March 22 ― During his second day of confirmation hearings, Gorsuch denied Sisk’s version of the story. In response to questions from Sen. Dick Durbin (D-Ill.), Gorsuch testified that it’s inappropriate for employers to ask women whether they plan on becoming pregnant, and offered a detailed version of what happened during his conversation with students in 2016.
The story has been updated with comment from the University of Colorado Law School.