Does the Likely Next Supreme Court Justice Support Pregnancy Discrimination?

According to a former student, the judge claimed pregnant women regularly take advantage of companies

Neil Gorsuch's Supreme Court confirmation hearings began Monday morning. Credit: Jonathan Ernst/Reuters

Pregnant women – they're the worst, right? Ladies are always getting knocked up so they can get a few months of paid vacation time – sorry, maternity leave. Then many of them up and quit so that they can go live the high life: sitting on the couch, with nothing to do but eat bonbons and watch Netflix, while earning no income whatsoever. What a scam!

Sarcasm aside, many people do hold exactly that view of pregnant women in the workforce: that they've signed up to carry, birth and then parent a child for 18-plus years just to get a few months of paid time off from work.

And it seems those folks may have a new champion: Neil Gorsuch, whose Supreme Court confirmation hearings began Monday morning.

A document that came out this weekend alleges that Judge Gorsuch holds such views about women, employment and pregnancy. The National Women's Law Center released a letter written by a former student of Gorsuch's who claims that, in a 2016 class discussion about pregnancy discrimination, Gorsuch told the class it's troubling that pregnant women take advantage of companies. From the letter:

"[H]e 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. ... 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. ... 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. ... Judge Gorsuch continued to steer the conversation back to the problems women pose for companies and the protections that companies need from women."

Gorsuch's former student sent the letter to the Judiciary Committee on Friday. Bolstering her claim, there is evidence from shortly after the class in question – long before President Trump nominated Gorsuch for the Supreme Court – that she complained about Gorsuch to the law school dean and posted about the comments on Facebook. Another student from the class, whose identity has been kept anonymous, submitted a declaration to the committee explaining that in class discussion Gorsuch was highly skeptical about female attorneys being able to balance work and a family.

Of course, pregnancy discrimination has been against the law for close to 40 years, since Congress amended Title VII to prohibit employers from discriminating against pregnant women. The Supreme Court has repeatedly applied this law to stop employers from treating pregnant women differently because of the possibility of becoming pregnant, as well as requiring employers to accommodate pregnancy the same way they would accommodate other conditions that impact the ability to work. The Court has also written very forcefully about the harm that falls on women based on the stereotype that they are "mothers first, and workers second." The Court quoted congressional testimony that "[t]his prevailing ideology about women's roles has in turn justified discrimination against women when they are mothers or mothers-to-be."

If these allegations about Gorsuch are true, the likely next Supreme Court justice – a relatively young man who would shape Court decisions for decades to come – strenuously disagrees with the way the law protects women who are pregnant or might become pregnant. According to his former student, Gorsuch believes that employers are the ones who suffer because of pregnant women – rather than, all too often, the other way around – and that the law should do nothing to ensure that women can participate equally in the workforce.

At Gorsuch's hearings, senators must question him closely about these issues, which affect everyone. He likely will offer one of two arguments in response: that the exchange never happened, as another student in the class wrote to the committee over the weekend, or that he was speaking hypothetically or asking a thought-provoking question (something the original student denies, saying in her letter that she knows the difference between a professor asking a question and stating his views).

The student's contemporaneous accounts of the class should weigh heavily here, and everyone should be concerned that Judge Gorsuch's views on women, employment and family are out of step with a society that values equal employment opportunities – as well as precedent from the Court he wants to join.