On Sunday, a former student at the University of Colorado Law School sent a letter to the Senate Judiciary Committee alleging that Supreme Court nominee Neil Gorsuch had suggested that "many" women manipulate employers to take advantage of paid leave:
[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 be raised because ‘many’ women use their companies for maternity benefits after the baby is born…. 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.
Later that day, another student contested that interpretation in a separate letter to the Judiciary Committee: "The judge was very matter-of-fact in that we would face difficult decisions; he himself recalled working late nights when he had a young child with whom he wished to share more time," Will Hauptman wrote. "The seriousness with which the judge asked us to consider these realities reflected his desire to make us aware of them, not any animus against a career or group."
Come Monday, nearly a dozen women who have clerked for Gorsuch had also come together in his defense: "We each have lived long enough and worked long enough to know gender discrimination when we see it," the female clerks wrote in a letter also sent to the Senate panel.
What a predicament. Now we will never know what to think. (As an aside, just 12% of private sector workers even have access to paid leave in the first place, so hypotheticals about women trolling around to take advantage are pretty rich either way.)
Even without this incident, Gorsuch's record on where he tends to land on issues between employers and employees is extraordinarily clear: Gorsuch backs the bosses. Here's a roundup of some representative cases from The New York Times:
In one case, Judge Gorsuch argued in a dissent that a company was permitted to fire a truck driver for abandoning his cargo for his own safety in subzero temperatures.
In another, he ruled against a family seeking reimbursement under a federal disabilities law for the cost of sending a child with severe autism to a specialized school. Then there was the professor who lost her job after taking time off to recover from cancer: Judge Gorsuch denied her federal discrimination claim, saying that while the predicament was “in no way of her own making,” it was “a problem other forms of social security aim to address.”
A Trump nominee was always going to be a conservative pick, but Gorsuch's record, combined with the anti-worker and anti-labor rights composition of the current Congress, is especially bad news for working women—and workers in general.
"It would be really surprising for him to hold on to that position as an actual Justice," Tamara Lee, an assistant professor at the Rutgers School of Management and Labor Relations and a former staff attorney at the National Labor Relations Board, told me when I asked about the alleged comments. "We have a well-established precedent that if that question were only posed to women, that it's obviously discriminatory on the basis of gender."
If confirmed, Gorsuch will be filling the seat previously held by the deeply conservative Antonin Scalia. That means the ideological tilt of the court won't change much, for better or worse. What's different now is the new Congress and administration, Lee said. And that's what makes a Gorsuch court such a danger to workers and labor rights.
"We need to be concerned about what Congress is doing, which, to me, is the more present threat," she said. "If they decide to draft [and pass] legislation that is anti-trans employees, anti-LGBT, anti-women's choice—all of those things will go before the Court to test their constitutionality."
And so a Court appointment of a judge with a record of siding with employers, combined with a pro-employer Congress, in addition to a pro-employer administration is a "very, very dire situation for labor," Lee said.
In this political and legal climate, women, particularly women who are LGBTQ or who have disabilities, could feel the impact on several fronts at once. In the dozen or so labor cases he heard as a judge on the U.S. Court of Appeals for the 10th Circuit that involved federal race, sex, age, and disability claims, Gorsuch often sided with the employers. “I think employers have a supporter with this particular nominee,” labor lawyer Gerald Maatman told the Los Angeles Times.
And as the ideologies of the people passing laws and the courts testing their constitutional muster shift further to the right, it "could be a recipe for disaster," Lee said.