Umm, this is all they’ve got?

The incident in question took place in an ethics class with Gorsuch, when Sisk alleges he asked students to raise their hands if they knew women who had taken advantage of their employer’s maternity benefits only to quit soon after they had their baby. When only a few hands went up she said Gorsuch insisted everyone’s should be up because, as she recalled him putting it, “many women do this”.

“She said he said something like, ‘How many of you have heard about women taking jobs at law firms to take advantage of good benefits programs so they can then take maternity leave?” Mattern recalled. “I said, ‘That’s a really messed up thing for the teacher to say.’”

According to Sisk’s account of what happened in class that day, Gorsuch not only shared his perception that women take advantage of their employers’ maternity benefits, but he repeatedly brought class discussion back to just how often women take advantage of their companies, emphasizing that it’s very much a women’s issue and a women’s problem, and that such abuses by certain women disadvantage any company unwise enough to employ them.

In Sisk’s telling of the incident, Gorsuch said companies had a right to ask about applicants’ plans to get pregnant to protect financial interests. For employers to ask such family-planning questions of women is not technically a violation of federal law, so long as hiring decisions are not based upon the answers. But the Equal Employment Opportunity Commission has said such questions will be regarded as “evidence of pregnancy discrimination” when an employer later makes a decision that adversely affects a pregnant worker.

So, in teaching a law class, consider the following question. Some women do indeed take advantage of such benefits. Anyone saying that no woman ever has is simply wrong. Further, it costs money to train junior lawyers up. There is also a gender pay gap, driven by maternity and child care.

At which point we’ve a slightly difficult problem. Those women who aren’t going to become mothers should not be affected by their future decision. Those who are should be. Not should as in righteously but that’s just the way the universe works.

So, when hiring, should people be allowed to ask young women whether they intend to become mothers or not?

It’s an interesting legal question, no? One that we’d expect young lawyers to be able to consider?

As it is current law allows the question but not hiring decisions based upon the answer. And where other than in a law course should you be able to ask whether that’s the right answer to the problem?

18 comments on “Umm, this is all they’ve got?

  1. It’s a matter for politicians to decide (whether employers can question and/or recruit based on likelihood of upcoming maternity leave); not for lawyers or judges.

  2. Never mind lawdogs–the less we hear from them the better.

    Far more damaging is money wasted on training female doctors who then decide–after 3 years on average is the figure I believe–that they would rather be a housewife. Or work 50% of the time.

  3. Mattern recalled. “I said, ‘That’s a really messed up thing for the teacher to say.’”

    What a Special Little Snowflake. She got upset because a teacher asked a theoretical question in class.

    For employers to ask such family-planning questions of women is not technically a violation of federal law, so long as hiring decisions are not based upon the answers.

    His view wasn’t even illegal. This woman ought to be hounded out of civil society.

  4. I think Gorsuch replied to this allegation during his hearing and elegantly put the senator who asked about that allegation back in his box.

    Because what was alleged wasn’t what happened to the surprise of no one.

  5. What a frightening prospect that a future legal practitioner be so offended by a question that she couldn’t ponder the potential pros and cons looking from different sides of the argument.

  6. Slightly o/t but extending tomsmith’s point, I’ve seen numerous reports (mostly from the US, of course) of law students requiring trigger warnings (and therefore authorisation to not attend lectures) and, consequently, exemption from examination on the subject of sexual offences.

    So we are going to improve the prosecution (and defence) of sexual offences, something which seems to be a widely agreed (if not properly justified) objective from most sides of the discussion, by qualifying a generation of lawyers who have deliberately omitted their education on the law around such offences?

    It’s the Murphy approach to academia spreading like a plague.

  7. What a frightening prospect that a future legal practitioner be so offended by a question that she couldn’t ponder the potential pros and cons looking from different sides of the argument.

    Future? They are here now, in droves.

  8. How can someone be offended by something stated as a hypothetical in an ethics class?

    My ethics training was full of such ambiguous examples, because… well, fuck me, that’s the point of ethics classes. You know, to tease out the contentious or difficult points.

    How is this complaint valid? Isn’t it like training to be a surgeon and complaining you were asked to work with sharp implements?

  9. I would love to see how they treat the Tudor period if they need a f**king trigger warning for that.

  10. There’s a difference between “do you know anybody who has done this?” which is what he asked, and “do you know that this happens?” which he *didn’t* ask.

  11. In the age of contraception I don’t think it would be unreasonable for a contract to say “You will not be given paid maternity leave in the next five years”. There could also be a penalty for leaving prior to having worked off the cost of training. This is often the case generally, for example if you leave a job to join a competitor, but I suspect it may not apply in the case of maternity leave, since you aren’t technically leaving the firm. If such contracts were prevalent maybe women would aim to bear children at a time of their lives that was convenient for both them and the people they interact with (including fathers, boom tish). In principle this should work well with the trend to mother bearing children at an older age, when they have already worked for, say, 7 years or so, which in most professions means that they will have completed training and been sufficiently useful to the company to warrant the benefit of the doubt.

    OMG you horrible, horrible right wing person for even suggesting such a thing!

    BTW – my daughter’s main teacher works, wait for it, a 3 day week. They are constantly having to find a replacement teacher for the other 2 days of the week, as, surprise surprise, most teachers don’t consider working 2 days a week a proper job. Part time works in many jobs (and probably being a GP is one of those, in fairness) but teaching young children isn’t one of them.

  12. Answer: C. Jobs are outsourced to India so they don’t have to put up with all this government shit.

  13. @LPT have the same problem, except my daughter is in French stream and they can’t always find replacements who speak French

  14. If you are male, and work in the ‘right’ job, then you have to do the work of your female colleague who takes maternity leave, because your employer can’t or won’t recruit anyone to do the cover.
    Now what sort of a job is that? Like working as a lecturer in an ex-Polytechnic? Now what would I know about that?

  15. She’s probably been paid or otherwise compensated to make this allegation, rather like the Dems did with Anita Hill and Clarence Thomas. Just downright filthy lying politics from the Democrats, yet again.

  16. I work in the NHS.

    I have seen Doctors and Nurses siit down and exchange hints and tips about how to manipulate maternity leave to benefit themselves the most.

    It is disgusting.

  17. My wife’s ex-team leader moved house during her maternity leave to be nearer her husband’s job and, consequently, out of reasonable reach of her (ex-) job. That must have been planned before she started maternity leave as it takes *months* to find a new house, exchange contracts, and move.

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