Prior to Judge Neil Gorsuch’s confirmation hearings for the U.S. Supreme Court, a former student alleged that he had made comments indicating that women sometimes “manipulate” maternity leave. Further, Jennifer Sisk claimed, he stated that companies had to ask questions about women’s family plans in order to protect themselves.
On April 19, 2016, Sisk wrote, Judge Gorsuch used a hypothetical from the prepared material for the class, in which a female law student applies for jobs at law firms because the student has a large debt to pay off. The student also intends to have a family with her husband.
“He interrupted our class discussion to ask students how many of us knew women who used their companies for maternity benefits, who used their companies to — in order to have a baby and then leave right away,” Sisk said.
She recalled that few students raised their hands and Gorsuch became animated. “He said, ‘Come on, guys. All of your hands should be up. Many women do this,'” Sisk said.
Another student who took the same class at University of Colorado Law School disputed Sisk’s account. In addition, 11 female former law clerks of Gorsuch’s wrote a letter in his defense, saying in part:
When we collectively say that Judge Gorsuch treats and values women fairly and without preference or prejudice based on their gender, we do not say that in a vacuum. We say it with the perspective of those who know that unfortunately, even in 2017, female lawyers are not always treated as equals.
On Tuesday, the second day of Gorsuch’s confirmation hearings before the Senate, Sen. Dick Durbin (D-Ill.) asked whether the account was true.
“No, Senator, and I’d be delighted to actually clear this up,” Gorsuch replied. He explained that the example was a hypothetical from a legal ethics textbook.
“The problem is this,” he said, “Suppose an older partner woman at the firm that you’re interviewing at asks you if you intend to become pregnant soon. What are your choices as a young person?” He said he and his students debated “the pros and the cons in a Socratic dialogue that they can think through for themselves how they might answer that very difficult question.” He admitted to Durbin that he did ask for a show of hands, but not about the question the senator referenced. Rather, he asked his class, “How many of you have had questions like this asked of you in the employment environment? An inappropriate question about your family planning?” Gorsuch said.
Gorsuch said he was “shocked every year” at how many women raised their hands. Fortune notes, however, that he was “less straightforward when answering earlier questions posed by Durbin about women in the workplace.”
Why It Matters
If confirmed, Gorsuch will help decide cases on pregnancy discrimination and accommodation, among other issues that affect working women.
For example, the Court’s 2014 decision in Young v. United Parcel Service created a test that makes it harder for employers to refuse to accommodate pregnant workers. (Interestingly, it did so while also providing that employers can accommodate some groups without doing the same for pregnant employees. This piece at Harvard Business Review is a good explainer of how that seeming contradiction works. The bottom line is that employers will ultimately find it harder not to provide accommodation.)
Under current U.S. employment law, women and men are a protected class on the basis of sex, meaning that they are protected from discrimination. But interpretation of that law is up to the courts, and the Supreme Court is the last word. It’s obviously pretty important to know where prospective justices stand on these issues.
Tell Us What You Think
Have you ever been discriminated against based on your family plans? We want to hear from you. Tell us your story in the comments or join the conversation on Twitter.