Judge Neil Gorsuch, whose confirmation hearing for the vacant seat on the Supreme Court begins Monday, holds views about women in the workplace that are more at home in an episode of Mad Men than in the 21st century, according to a former student.
Jennifer Sisk, a Denver attorney who took a class taught by Gorsuch at University of Colorado law school, wrote to Senate Judiciary Chair Chuck Grassley (R-IA) and Ranking Member Dianne Feinstein (D-CA) claiming that Gorsuch said firms should engage in illegal and sexist hiring practices.
Gorsuch’s alleged comments arose during a class discussion involving a hypothetical about a female law student who wanted to work at a law firm and also intended to start a family with her husband. According to Sisk,
[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.
I do not remember if any students raised their hands, but it was no more than a small handful of students. At that point, Judge Gorsuch became more animated saying “C’mon guys.” He then announced that all our hands should be raised because “many” women use their companies for maternity benefits and then leave the company after the baby is born.
The judge, according to Sisk, “argued that because many women left their companies we all knew women who purposefully used their companies.” Gorsuch also allegedly “outlined how law firms, and companies in general, had to ask female interviewees about pregnancy plans in order to protect the company.”
According to the federal Equal Employment Opportunity Commission, the federal law banning sex discrimination in employment does not explicitly prohibit employers from asking a woman if she intends to become pregnant. The law does, however, “prohibit covered employers from basing hiring decisions on pregnancy or sex. Thus, an employer may not refuse to hire a woman because she is or expects to become pregnant.”
So it is illegal for an employer to “protect the company” by treating women applicants differently because they intend to have a family. Most responsible employers avoid the kind of questions Gorsuch allegedly suggested, if for no other reason than because such questions offer evidence that the company did intend to discriminate on the basis of a woman’s future plans to become pregnant — and potentially open the company up to liability.
Ironically, the name of the course that Sisk took from Gorsuch was “Legal Ethics and Professionalism.”