In a just-released letter to the Senate Judiciary Committee, a former student of Judge Gorsuch has alleged that last year, in the Legal Ethics and Professionalism course he taught at the University of Colorado, Judge Gorsuch made a series of comments asserting that women manipulate employers by accepting jobs without disclosing their plans to become pregnant, accepting maternity benefits from their employers, and then failing to return to work after maternity leave. The former student states:
“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 was wrong. Instead Judge Gorsuch told the class that not only could a future employer ask female interviewees about their pregnancy and family plans, companies must ask females about their family and pregnancy plans to protect the company.”
Documentary evidence confirms she complained to others at the time about these statements, including to law school administrators. A second former student from the same class has submitted an anonymous declaration to the Judiciary Committee stating that Judge Gorsuch “said that many female lawyers became pregnant, and questioned whether they should do so on their law firms’ dime.” If accurate, these descriptions— which are corroborated by more than one person and were reported contemporaneously — suggest that were Judge Gorsuch elevated to the Supreme Court, critical precedents and legal interpretations protecting women from sex discrimination at work would be at risk.
As Chief Justice Rehnquist noted writing for a six-Justice majority in 2003, “Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.” Justice Rehnquist explained that at the same time, men are presumed not to be responsible for families, which leads to men being denied family leave and other accommodations to take care of their children: “These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value to employees,” he stated. The Court concluded that reliance on these gender stereotypes led state employers to discriminate on the basis of sex in violation of the Equal Protection Clause by refusing employment opportunities to women based on their pregnancy or motherhood and by denying men opportunities to care for their families, and that the Family and Medical Leave Act’s gender-neutral entitlement to leave for state employees to care for newborns or sick family members was an appropriate response to address and prevent these constitutional violations. While 14 years ago, the conservative Justice Rehnquist recognized the harm of such discrimination, the statements Judge Gorsuch is said to have made traffic in precisely the pernicious stereotypes that the Supreme Court described and rejected — 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 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. Indeed, the very first Title VII sex discrimination case ever decided by the Supreme Court, in 1971, found that an employer discriminated in violation of law when it denied employment to women with pre-school age children, and not men with pre-school age children. As Justice Marshall wrote in concurrence, “[C]haracterizations of the proper domestic roles of the sexes were not to serve as predicates for restricting employment opportunity.” The Court made a similar point in 1991, stating, “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.” For this very reason, Title VII has long been understood to prevent employers from making the sorts of inquiries Judge Gorsuch is said to have urged. The Equal Employment Opportunity Commission has been clear: “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.”
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.
Update: Late Sunday night, another student in the same class submitted a letter to the Judiciary Committee disputing the recollections of his classmate and stating that in fact Judge Gorsuch was merely exploring “the tension between building a career in a time-intensive profession and starting a family and raising children—especially for women.” The dispute provides an even greater need for a thorough and close investigation of this issue in the hearings this week.