NPR’s Nina Totenberg reports today that Neil Gorsuch, President Trump’s nominee to the Supreme Court, warned University of Colorado Law School students that employers should be wary of female job applicants and should question women on their plans to start a family because, he said, they may just want a job only in order to secure maternity benefits and leave quickly to raise children.
As Totenberg notes, “Federal law prohibits employers from making hiring decisions based on pregnancy status or family plans.”
In a letter to the Senate Judiciary Committee, Jennifer Sisk, a former student, says that as an instructor, Gorsuch suggested that “‘many’ women use their companies for maternity benefits and then leave the company after the baby is born.”
“Judge Gorsuch’s comments implied that women intentionally manipulate companies and plan to disadvantage their companies starting from the first interview,” according to Sisk’s letter, which says Gorsuch argued that “law firms, and companies in general, had to ask female interviewees about pregnancy plans in order to protect the company.”
Throughout this class Judge Gorsuch continued to make it very clear that the question of commitment to work over family was one that only women had to answer for. There was no discussion of the reasons women may leave employment when having children or the difficulties in raising young children and meeting the high billable hours required in law firms. Instead, Judge Gorsuch continued to steer the conversation back to the problems women pose for companies and the protections that companies need from women.
Another student confirmed that Gorsuch had told students that “many female lawyers became pregnant, and questioned whether they should do so on their law firms’ dime.”
The National Women’s Law Center writes that if these statements are accurate, he engaged in the “stereotype that female employees must be regarded with suspicion because they are ‘mothers first, and workers second’ and the related stereotype that family caregiving obligations are solely the responsibility of women.”
If elevated to the Supreme Court, says the NWLC, “critical precedents and legal interpretations protecting women from sex discrimination at work would be at risk.”
If Judge Gorsuch stated that companies can and indeed must ask women (and only women) about their plans in regard to family and pregnancy in order to protect corporate interests, he is advocating to overturn longstanding protections against pregnancy discrimination and other forms of sex discrimination at work. It is difficult to interpret these statements as anything other than an argument that employers should refuse to hire women who plan to soon have children (for if employers were not going to act on this information, how does making this inquiry protect their interests?). But Title VII prohibits employment discrimination on the basis of sex, specifically including discrimination on the basis of pregnancy and childbirth, and indisputably prohibits taking an adverse employment action against a female employee based on her pregnancy or her intention to become pregnant or the fact that she has children.
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The reported statements by Judge Gorsuch take issue with this long line of precedents. There are two possible interpretations of the statements. The first is that employers should disregard the law, putting their own perceived financial self-interest above their obligations to treat female applicants and employees fairly. (Never mind that a growing raft of analyses demonstrates that providing equal opportunity to women is good for business, as it helps ensure that businesses can profit from women’s talent.) This would be a strange lesson for a legal ethics class, to be sure.
The other possible interpretation of the statements is that given the opportunity, Judge Gorsuch would seek to overturn the long-established principle that denying women employment opportunities because they have children, or because they may have children in the future, is one of the most persistent and harmful forms of sex discrimination, relegating women to second-class status at work. After all, the statements certainly imply that employers should be permitted to reject female applicants based on their intention to have a family, even as they make no such queries or judgments as to male applicants. They suggest that rather than upholding women’s rights to be judged on their job performance, courts should focus on employers’ possible financial exposure should they provide paid maternity leave benefits to ungrateful women. One could imagine a Justice Gorsuch reasoning, for example, that when employers demonstrate that they are motivated by financial interests in disfavoring certain candidates, they do not violate Title VII, because they are not motivated by animus against pregnant women, mothers, or women more broadly. Particularly given his record of reflexive deference to employers in employment discrimination cases, the reported statements raise critical topics for further exploration in Judge Gorsuch’s hearing this week, as they indicate an absolutely disqualifying disregard for women’s rights to equal opportunity at work.
