Two former students have accused Supreme Court nominee Neil Gorsuch of telling their class that businesses needed to ask female job applicants about “their pregnancy and family plans,” alleging that “many women” manipulated maternity leave policies for their own benefit.
The allegations by Jennifer Sisk and a second unidentified student who took a class under Gorsuch at the University of Colorado were first released by the the National Employment Lawyers Association (NELA) and the National Women’s Law Center (NWLC) on 19 March 2017. Both documents were also submitted to Senate Judiciary Committee chair Sen. Chuck Grassley (R-IA) and ranking member Sen. Dianne Feinstein (D-CA).
Gorsuch denied making those statements during a 21 March 2017 confirmation hearing, telling Sen. Dick Durbin (D-IL):
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?
Gorsuch said during the hearing that the question was drawn from a “standard textbook” he used for the course:
The problem is this. 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? You can say yes tell the truth (the hypothetical that it’s true) and not get the job and not be able to pay your debts. You can lie, maybe not get the job. You can say no — that’s a choice, too. That’s a hard choice. Or you can push back in some way, shape, or form.
Sisk, who has worked for Sen. Mark Udall (D-CO) and the Department of the Interior during former President Barack Obama’s administration, said in her letter that Gorsuch made the comments during an April 2016 class concerning a hypothetical female student’s interviewing for a job at a law firm. According to Sisk, the hypothetical student “had large debt” and sought work at a firm to repay her student loans while also wanting to have a child with her husband. The ensuing discussion, Sisk wrote, focused on law school student debt and “work-life balance”:
[Gorsuch] 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.
Gorsuch allegedly then told the class that every student should have raised their hand because “many” women engaged in such behavior. When other students tried to discuss balancing family responsibilities with pursuing a legal career, Sisk wrote, Gorsuch focused on “the exclusive issue of females having children”:
Judge Gorsuch outlined how law firms, and companies in general, had to ask female interviewees about pregnancy plans in order to protect the company. 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.
Instead, she said, Judge Gorsuch told the class that not only could a future employer ask female interviewees about their pregnancy and family plans, companies must ask families about their pregnancy and family plans to protect the company. Judge Gorsuch tied this back to his original comment that companies need to ask questions in order to protect themselves against the female employees.
However, the committee has also received statements in support of Gorsuch from both a male former student, Will Hauptman, and a group of 11 women who formerly served as legal clerks for the Supreme Court nominee. The latter document stated in part that:
We each have lived long enough and worked long enough to know gender discrimination when we see it. Some of us have experienced it professionally on occasion. 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.
In his letter, Hauptman — who still attends the university — said that “had Judge Gorsuch truly made the statements described in [Sisk’s] letter, I would remember—the statements would have greatly upset me.”
NWLC president-elect Fatima Goss Graves said in a statement that the alleged remarks show a “disqualifying disregard for women’s rights to equal treatment at work” on the part of Gorsuch:
Such statements fly in the face of longstanding precedents seeking to ensure that employers judge women on their performance, rather than on their family roles. As Chief Justice Rehnquist recognized almost 15 years ago, the stereotype that women are mothers first and workers second has long been a primary obstacle women face in the workplace. Gorsuch’s reported statements perpetuate this stereotype and demand close scrutiny in his hearing this week.
During the hearing, Gorsuch said that he asked for students to raise their hands if they had been asked “An inappropriate question about [their] family planning.”
“I am shocked it still happens every year that I get women, not men, raising their hand to that question,” he said.