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Confirmation hearings began on Monday for Judge Neil Gorsuch, President Trump’s nominee to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia last year.
Gorsuch has a limited record on so-called women’s issues, but his former law student Jennifer Sisk came forward over the weekend with allegations that the Supreme Court nominee told his Legal Ethics and Professionalism class that employers should question female job applicants about their plans to have children and also implied that women manipulate their employers for maternity leave benefits, starting at the interview stage.
Gorsuch’s former student sent a letter — posted Sunday evening by the National Employment Lawyers Association and the National Women’s Law Center — outlining her concerns and the details of the situation to Sen. Chuck Grassley, R-Iowa, chair of the Senate Judiciary Committee, and to Sen. Dianne Feinstein, D-Calif., the ranking member of the Senate Judiciary Committee, on Friday. Sisk graduated from the University of Colorado Law School last year and has told reporters that she penned her letter so that “proper questions could be asked during his confirmation hearings.”
According to Sisk, on April 19, 2016, Gorsuch discussed a hypothetical situation raised in the course’s reading about a female law student interviewing at firms for a job after graduation so that she might begin paying back her student loans. This student was also married and intended to have children with her husband. Gorsuch, Sisk says, stopped the conversation that the class had engaged in as a result of the reading regarding work-life balance at law firms, asking the students to raise their hands if they knew someone who had taken a job to get maternity benefits and then left the company right after having a baby. In her letter, Sisk makes clear that the question “was not about parents or men shifting priorities after having children. It was solely focused on women using their companies.”
Sisk continues by saying that after “no more than a small handful of students” raised their hands in reply, Gorsuch “became more animated” and said, “C’mon guys,” before announcing that everyone in the class ought to have raised his or her hand because, Sisk recalls him saying, “many” women use their companies for maternity leave benefits and then leave the company after the baby is born.
“Judge Gorsuch argued that because many women left their companies we all knew women who purposefully used their companies,” Sisk writes. “Judge Gorsuch’s comments implied that women intentionally manipulate companies and plan to disadvantage companies starting from the first interview.”
Sisk also notes that as the class’s conversation went on, Gorsuch continued to drive the discussion back solely to the issue of women professionals having children and, said that “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.”
Sisk first voiced her concerns about Gorsuch based on her experience with him as a professor in a Facebook group for female lawyers and had also previously raised issue about Gorsuch’s in-class comments with the dean of the University of Colorado Law School.
“Judge Gorsuch told our class that female lawyers get divorced at twice the rate of male lawyers. He also said that many female lawyers became pregnant, and questioned whether they should do so on the law firm’s dime. He asked the female students in my class what they would do if they became pregnant and about the impact of their pregnancies on their law firms. He also asked how they would take care of their children after those children were born.”
But other former students and staffers have come forward to dispute the claims in Sisk’s letter. NPR reports that Will Hauptman, a current law student at the University of Colorado, sent a letter to the Senate Judiciary Committee on Sunday, saying, “Although Judge Gorsuch did discuss some of the topics mentioned in the letter, he did not do so in the manner described.” And a group of 11 women who have clerked for Gorsuch also submitted a letter of support.
According to Title VII of the Civil Rights Act of 1964, discrimination in employment on the basis of race, color, sex, national origin, or religion is illegal in the United States. In 1978, Title VII was explicitly amended to include the Pregnancy Discrimination Act, which prohibits an employer from refusing to hire a woman because of pregnancy, childbirth, or medical conditions related to either. According to the Equal Employment Opportunity Commission (EEOC), one of the critical agencies charged with enforcing Title VII, although asking applicants about pregnancy or their marital or parental status does not violate Title VII, a fact-finder would be likely to presume that the answers to such questions formed the basis for a selection decision. Because of this, if a selection decision about a candidate were challenged, the fact that the employer asked about pregnancy or plans regarding family building would be seen as evidence that the employer unlawfully used sex or pregnancy as a factor in the selection decision.
The allegations about Gorsuch come on the heels of new data released just last week showing that, in fact, the average number of weeks that employers are giving workers for maternity and paternity leave fell over the past decade and that while more companies are paying women who go on parental leave, the percentage of employers offering workers 100 percent of their regular pay during leave has dropped from 17 percent to 10 percent over the last 10 years.
Furthermore, data released by Ohio State University researchers in January of this year showed that the number of U.S. women taking maternity leave has not changed in 22 years, despite factors suggesting that this number should be increasing. During the same period, the number of men taking paternity leave increased from 5,800 men per month to 22,000 men per month in the U.S. This research found that less than half of all women who took maternity leave were paid for their time off in 2015, while 70.7 percent of men on family leave were paid for their time off.
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