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?