Health

Supreme Court Nominee Apparently Supports Pregnancy Discrimination

Neil Gorsuch thinks potential employers should ask women if they plan to have kids.
March 20, 2017, 7:15pm

Supreme Court nominee Neil Gorsuch faces his first confirmation hearing today, where Democrats will likely grill him on his stances on LGBTQ rights, assisted suicide, and Obamacare's contraception coverage mandate—all issues that he's either ruled or argued against. And now it's likely that the federal appeals court judge will have to respond to a letter from one of his former law students alleging that Gorsuch accused women of manipulating employers for maternity benefits.

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Last night, the National Women's Law Center and the National Employment Lawyers Association published a letter from Jennifer Sisk, who wrote that, during a 2016 Legal Ethics and Professionalism class at the University of Colorado Law School, Gorsuch allegedly said employers should ask women during the interview process if they were planning on having children. The class was considering the case of a hypothetical woman interviewing at law firms who wanted to pay back her law school loans and start a family in the near future. The class was having a lively discussion on work-life balance and law school debt, but Gorsuch redirected the conversation.

Sisk wrote:

Instead, he asked the class to raise their hands if they knew of a female who had used a company to get maternity benefits and then left right after having a baby. Judge Gorsuch specifically targeted females and maternity leave. This question was not about parents or men shifting priorities after having children. It was solely focused on women using their companies.

She said that after only a few people raised their hands Gorsuch said "C'mon, guys" and added that the whole class' hands should be raised because "many" women use their companies for maternity benefits and then leave after the baby is born. He said that companies had to ask female candidates about their pregnancy plans during interviews for the sake of the company. She said that at least one student said employers can't ask questions like that, but Gorsuch told the class that was wrong.

She continues:

Instead Judge Gorsuch told the class that not only could a future employer ask female interviewees about their pregnancy and family plans, companies must ask females about their family and pregnancy plans to protect the company. Judge Gorsuch tied this back to his original comment that companies need to ask these questions in order to protect themselves against female employees.

Sisk, who previously worked for Interior Department during the Obama administration, reported the incident to the University of Colorado in April 2016 and administrators said they would speak to Gorsuch at the end of the semester. Another student from the same class submitted an anonymous declaration about Gorsuch's "strongly gendered" comments in the classroom, including a statement "that many female lawyers became pregnant, and questioned whether they should do so on their law firms' dime." He also "asked the female students in my class what they would do if they became pregnant and about the impact of their pregnancies on their law firms."

Here is where we remind you that the United States is the only industrialized nation in the world that doesn't guarantee paid maternity leave and that for those women lucky enough to get it, quitting after said leave is entirely legal. President Trump proposed a plan in September that would entitle women to six weeks of paid maternity leave; after some sharp criticism, the plan will maybe, possibly change to include dads, same-sex partners, and adoptive parents.

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The Equal Employment Opportunity Commission does not ban employers from asking if applicants or employees are pregnant or intend to become pregnant, but these kinds of questions are "generally discouraged." It IS illegal, however, to use that information to make decisions on hiring, assignments, or promotions—it's a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

Sisk sent the letter to the chairman of the Senate Judiciary Committee, Senator Chuck Grassley, and Ranking Member Senator Dianne Feinstein on Friday; Gorsuch will testify before this committee. A male student in the class disputed Sisk's account in a separate letter to the committee and a group of 11 former female law clerks submitted a letter in support of Gorsuch's nomination.

Sisk publicly noted her concerns about Gorsuch the day of his nomination, posting on Facebook that he'd argued that "employers need heightened protections against women and need lax employment law before hiring women" but she concluded that Gorsuch is "still better than the rest of the choices." Sisk told NPR that she wrote the letter "so that the proper questions could be asked during his confirmation hearings."

Gorsuch's alleged comments are not the first from the Trump administration that suggest discrimination against pregnant women. Seema Verma, the recently confirmed head of the Centers for Medicare and Medicaid Services, said she wants women to be able to buy insurance coverage that excludes maternity care, which would effectively raise costs for women who plan to have children and saddle them with the financial burden of propagating the species. Last May, NBC News unearthed a 2004 interview in which Trump said that pregnancy is "a wonderful thing for the woman, it's a wonderful thing for the husband" but "the fact is it is an inconvenience for a person that is running a business." Yep, looks like Gorsuch will fit right in.

Update 3/22/17: During Gorsuch's confirmation hearing on Tuesday, Senator Dick Durbin asked the judge if he'd asked "students in class that day to raise their hands if they knew of a woman who had taken maternity benefits from a company and then left the company after having a baby?" Gorsuch said he did not, and that he was "delighted" to be able to respond to the allegations. He said the class discussed a hypothetical scenario from a textbook about a woman being asked during an interview if she planned to have children soon. He characterized the woman's potential responses choices thus: saying yes and not getting the job, lying and getting the job, or pushing back against the question in some way.

He added:

"We talk about the pros and the cons in a Socratic dialogue so that they can think through themselves how they might answer that very difficult question. Senator, I do ask for a show of hands, not about the question you asked but about the following question, and I ask it of everybody: how many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning? And I am shocked every year, Senator, how many young women raise their hand. It's disturbing to me. I knew this stuff happened when my mom was a young practicing lawyer, graduating law school in the 1960s. At age 20 she had to wait for a year to take the bar. I knew it happened with Justice [Sandra Day] O'Connor, couldn't get a job as a lawyer when she graduated Stanford Law School and had to work as a secretary. I am shocked it still happens every year that I get women, not men, raising their hand to that question. Thank you for the opportunity to clarify that.

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