Today in his confirmation hearing, when questioned about allegations that he previously suggested women manipulate employers by failing to disclose their plans to become pregnant, Judge Gorsuch refused to say that he believed it would be evidence of unlawful sex discrimination if an employer were to ask female job applicants about their family plans, but not male applicants.  While he described such questions as “highly inappropriate,” he claimed that could not answer the legal question posed by Senator Durbin, because it might constitute prejudging a controversy that could later come before him.  When Senator Durbin asked Judge Gorsuch whether there are situations where the cost of maternity leave can justify an employer asking female applicants and not male applicants about family plans, Judge Gorsuch said he did not agree with that—but he seemed to be describing his personal opinion on whether such questions can be justified, rather than his view of the law’s requirements.  And he refused to state whether he found the Equal Employment Opportunity Commission’s interpretation of Title VII to be persuasive when it stated, “Because Title VII prohibits discrimination based on pregnancy, employers should not make inquiries into whether an applicant or employee intends to become pregnant. The EEOC will generally regard such an inquiry as evidence of pregnancy discrimination where the employer subsequently makes an unfavorable job decision affecting a pregnant worker.”

These responses are wholly inadequate.  The Senator Durbin’s questions did not invite Judge Gorsuch to resolve open, complicated, nuanced, or closely disputed legal issues.  Rather, he was asked whether he accepts what have long been the undisputed rules of the road: employers cannot apply one set of rules to men and another to women based on women’s plans to become pregnant or their status as mothers.

The text of Title VII specifically prohibits discrimination on the basis of sex, including on the basis of pregnancy, childbirth, or related medical conditions, and the Supreme Court has over the decades repeatedly held that when an employer treat mothers and fathers differently, or treats women who are pregnant or intend to become pregnant differently from those who are similar in ability to work, the employer engages in unlawful discrimination.  Specifically, in 1971, in the first Title VII sex discrimination case decided by the Supreme Court, the Court, the Court held that it was discriminatory for an employer to have “one hiring policy for women and another for men—each having pre-school-age children.”  In 1987, the Court noted that reliance on “archaic or stereotypical notions about pregnancy and the ability of pregnant workers” would be inconsistent with Title VII.  In 1991, it stated that when an employer “chooses to treat all its female employees as potentially pregnant[,] the choice evinces discrimination on the basis of sex,” and it emphasized, “Women who are either pregnant or potentially pregnant must be treated like others ‘similar in their ability . . . to work.’  In other words, women as capable of doing their jobs as their male counterparts may not be forced to choose between having a child and having a job.”  In a case involving the Family and Medical Leave Act in 2003, the Court described and decried a long history of “denial or curtailment of women’s employment opportunities . . . traceable directly to the pervasive presumption that women are mothers first, and workers second.”  Moreover, the Court has made clear that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.”

These statutory protections and this robust case law make clear that employers must judge women on their job performance, not on the employer’s assumptions about how well pregnant women or mothers do their jobs.  This is precisely why employer questions to women about whether and when they intend to have children are regarded as evidence of discrimination.  Asking a job applicant about when she plans to have children is a red flag, just as it would be a red flag for an employer to ask a job applicant questions about what church she attends or what her medical history includes or what race her grandparents were.  Judge Gorsuch today attempted to explain away the allegations made against him by a former student regarding his own attitudes about women and work as a pedagogical misunderstanding on her part.  But this should not distract from failure to affirm these core legal principles as settled law.  His testimony today raised far more questions than it answered.

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