Did Supreme Court Nominee Gorsuch Instruct Law Students to Skirt Fair Employment Laws?

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Culture & Conversation Law and Policy

Did Supreme Court Nominee Gorsuch Instruct Law Students to Skirt Fair Employment Laws?

Jessica Mason Pieklo

The more we learn about Supreme Court nominee Neil Gorsuch, the worse he seems for the bench.

Right out of law school, I was one of those fortunate enough to have landed a good litigation job at a well-known and respected firm in Minneapolis, Minnesota. But instead of entering into a highly charged work environment that would challenge and push me, I walked into one full of colleagues who viewed me with suspicion and derision.

Why? As far as I can tell, it was because I was a young woman beginning her career—and maybe I’d get pregnant and abandon it.

Turns out, U.S. Supreme Court nominee Neil Gorsuch would have probably fit right into my old firm. As a professor, he apparently encouraged future attorneys to view women lawyers with that same suspicion, and to enforce policies that propagated that belief. That perspective is both unethical and unlawful—and it alone should keep Gorsuch off the Supreme Court.

Roe is gone. The chaos is just beginning.

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The suspicion that I faced as a young litigator—that my gender meant I wasn’t fully committed to my career—wasn’t subtle. The first full week of my job, the other female associates and a few of the junior partners decided to get together for a happy hour after work. As we were waiting in the law firm lobby for the elevator, the white, male hiring partner at our law firm snarked that it must be “time for the sewing circle to meet,” seeming to suggest that we weren’t so-called real lawyers.

Maybe we should have told the managing partner we were going golfing.

And that was just the beginning. Going into private practice, I was laser-focused on working complex corporate fraud cases. I was smart. Ambitious. And willing to work whatever hours needed to become one of the best lawyers in the country. In law school, we called those students “gunners.” I was, by every count, a gunner.

Instead of encouraging my ambition and drive, though, the male partners handed me file after file of small-time insurance disputes. At first I chalked it up to the more experienced partners helping me ease into litigation. After all, I had some experience as a legal aid attorney and law clerk, but handling an eviction case is a lot different than handling a time-intensive shareholder dispute where family members are accusing each other of fraud and theft. But those assignments never changed. I went from office to office, asking for more challenging work. Finally, frustrated to the point of tears, I went into the office of the highest-ranking female partner—who was widely respected by the men in the firm—to ask her what the hell was happening.

Well, we’re waiting to see if you’re going to get pregnant and come back to work, was effectively her answer.

I was speechless. I had felt that sentiment in the overall atmosphere in the firm. But nobody had yet said that directly to my face.

That lack of support for families was also an institutional problem. When I first started with the firm, it did not have a family leave policy in place. A few months before I became pregnant with my first child, another female associate started the process of drafting one. I jumped in; in 2004, when my son was born, I was the second attorney at the company to use family leave. It was only partially paid, and I came back to work early. My first few paychecks went toward covering the benefits, such as health insurance, I’d accrued debt for while on unpaid leave. This meant I worked an entire month after my leave before seeing a paycheck with a positive balance.

Women law students now outnumber men, yet still get squeezed out of leadership roles in the profession because of structural barriers like these. This problem is amplified for women of color.

And it is still propagated, and enforced, by the kinds of sentiments Gorsuch reportedly expressed as a professor.

According to a recently released letter by the Senate Judiciary Committee, a former Gorsuch law student complained to administrators at the University of Colorado law school that while Gorsuch taught Legal Ethics and Professionalism, he told students that women manipulate employers by accepting jobs without disclosing their plans to become pregnant. The complaint says Gorsuch also told students that women will use their existing family leave benefits, knowing they don’t plan on returning to work.

In other words, according to Gorsuch’s professional ethics course, women are grifters that employers should immediately view with suspicion.

Per the complaint, Gorsuch spent part of his ethics class detailing how both law firms, and corporations in general, should ask female job interviewees about pregnancy plans in order to protect the company. At least one student reportedly pushed back against Gorsuch’s statements and pointed out, correctly, that fair employment laws—like Title VII of the Civil Rights Act, state-level human rights acts, and other pregnancy anti-discrimination protections—mean that an employer cannot ask questions about an interviewee’s pregnancy plans.

Gorsuch apparently disagreed, telling the class that in fact not only could a future employer ask female interviewees about their pregnancy and family plans, companies must do so to protect their profits and bottom line.

Not even former Supreme Court justice and noted conservative William Rehnquist agrees with Gorsuch here. In a 2003 decision, the justice stated views like Gorsuch’s can impede women’s access to the workplace and thus violate the U.S. Constitution. He cited congressional testimony:

Historically, denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women’s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.

I would eventually leave private practice and start teaching law students. In fact, at a law school in Minnesota, I taught a very similar course to the one in which Gorsuch told students they should skirt fair hiring laws to protect corporate interests.

Professional Responsibility and Ethics was one of my favorite courses to teach because I had the opportunity to sit with students who would be the future of the profession and humanize the experience of being a new lawyer in the unfamiliar and dog-eat-dog world of legal practice. I could rely on my experience advising corporate clients on how to comply with the law, not avoid it. That is the ethical obligation of an attorney: It doesn’t matter if you help a corporate client drive up profit, if you simultaneously expose them to employment discrimination lawsuits. Gorsuch’s alleged advice was walking those future lawyers right into obvious legal landmines.

But beyond that, the lesson as described did something more sinister: It helped to advance a structural bias against women that we are mothers first and workers second. It reproduced the idea that women are not serious in their careers and will take advantage of employers at every turn.

This is garbage, though. Like the debate over the birth control benefit in the Affordable Care Act, in which conservatives complained women were just lining up to get “free birth control,” the framing ignores the fact that women employees pay for these benefits—when they exist at all. They are entitled to take them since they are part of their compensation.

Gorsuch very intentionally called into question the work ethic of more than half the population of law students. So as a woman who has persisted in the legal profession for well over a decade now, I have to ask Gorsuch a few questions, and I hope the Senate Judiciary Committee does as well during his confirmation hearings this week.

Does he really believe corporations can ignore fair employment practices? Does he really believe women are less dedicated to their careers? Or is it that he sees the tide of white male dominance in legal professions receding, and views it as his job to do whatever he can to keep those guys in power?