A Supreme Court nominee shows why many people get maternity leave wrong

According to one of his former law students, Donald Trump’s Supreme Court nominee, Neil Gorsuch, believes “‘many’ women use their companies for maternity benefits and then leave the company after the baby is born.”

Gorsuch also allegedly believes that law firms should ask female interviewees about their intentions to have children “to protect the company.”

On Sunday, the National Employment Lawyers Association and the National Women’s Law Center posted a letter from Gorsuch’s former student, Jennifer Sisk who wanted to raise concerns about how Gorsuch “discounts the worth of working females.”

Sisk wrote that her ethics professor’s comments were disappointing because it implied “that women intentionally manipulate companies and plan to disadvantage their companies starting from the first interview.”

These allegations are especially timely because Gorsuch’s confirmation hearings began Monday.

In his opening statement on Monday, Gorsuch was frank about his shortcomings, “As my daughter reminds me, putting on a robe does not make me any smarter.”

When having babies is a threat to ‘the company’

Gorsuch’s comments occurred in Sisk’s Legal Ethics and Professionalism class last April.

To prepare his class for a work-life balance discussion, Gorsuch had them read a hypothetical scenario where a female law student applies for jobs at law firms because she has a large debt to pay off. The married student also intends to start a family.

The question: should the female law student disclose her family planning intentions to employers in interviews?

In class, Gorsuch used this hypothetical as jump-off point to discuss his own personal beliefs.

In Sisk’s retelling, Gorsuch stopped the discussion around the hypothetical and “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.”

When not enough people raised their hands, Gorsuch allegedly said, “C’mon guys.”

He said that all of their hands should be raised because “we all knew women who purposefully used their companies.” He did not use statistics to back up his claim of the “many women.”

Making the assumption that all women had childbearing in their future, Gorsuch said law firms should ask female interviewees about their intentions to have children “to protect the company.”

Some key mistakes about maternity leave and its effects

It’s worthwhile to debunk some of Gorsuch’s assumptions; if a trained lawyer can make those mistakes, anyone can.

The first and most important thing to consider is that very few women (or men) will gleefully give up an income unless they absolutely have to.

The second is that having children, of course, does not hurt a woman’s ability to do her job, though it does affect her schedule due to childcare demands. For that matter, it should also affect fathers’ schedules. But studies have shown that having a baby frequently hurts a woman’s ability to get promoted — the dreaded “mommy track.”

Another major factor: relatively few workplaces offer flexible work schedules for women and men who have new babies. That may make quitting unavoidable if the choice comes down to keeping a new infant alive or being in a seat for 40 hours a week. Even though 70% of American workers say flexible schedules are “very important,” workplaces have not caught up.

In addition, balancing 40-hour workweeks with care of an infant less than three months old is nearly impossible without help, and childcare is expensive. Childcare can cost around $500 a month or more, according to the Economic Policy Institute — and that doesn’t count the costs in big urban centers, where it can rise sky-high.

Employers cannot hire or fire women on the basis of pregnancy

Gorsuch’s advice to companies to ask female lawyers about their family planning does not “protect the company.” It may actually open the company to future lawsuits.

Under the Equal Employment Opportunity Commission’s guidelines, employers can legally ask applicants gender-related questions about pregnancy, but they cannot make hiring decisions based on an applicant’s answers.

So employers are better off not asking at all. The EEOC “generally discourage[s]” employers from asking these kind of questions because it can lead employers into legal hot water. The EEOC said it considers whether employers asked these questions in pregnancy discrimination lawsuits.

Family planning is an issue for both women and men

When it comes to family planning, the burden should not be on women alone. Sisk criticized Gorsuch for making “the questions of commitment to work over family” a question “that only women had to answer.”

In his ethics class, Gorsuch did not discuss what role men should have in family planning. There are economic and personal benefits for everyone when paid family leave is an option: it puts more women in the workforce, and it increases middle-class family incomes.

Maternity leave isn’t an individual issue; it’s an economic issue

The Family and Medical Leave Act gives workers 12 weeks of unpaid family leave, but the United States currently does not federally mandate any paid family leave.

The National Partnership for Women & Families Women argues that paid leave improves employee retention, saving employers money since turnover can be costly. An analysis into 27 case studies found that turnover cost companies 21% of an employee’s annual salary.

In California, workers do get up to six weeks of partially paid family leave and it pays off for employers. California women who took leave were at least 6% more likely to increase their work hours 1-3 years after the birth of their child.

Paid family leave there also also increased productivity. “Employees who took time off when a new baby arrived or when a serious illness struck were less stressed than [other employees]. Less stressed workers mean more productive workers,” Annette Bonilla, the Vice President and Director of Human Resources for Environmental Science Associates in California said.

The government also benefits from robust family leave policies too. After New Jersey offered paid family leave to new mothers, less of its constituents needed government assistance. 39% of the mothers who took paid family leave were less likely to receive public assistance and 40% were less likely to receive food stamps in the year after a child’s birth.

It’s a family issue

Partners who take paid parental leave become more involved partners. This is the kind of work-life balance Gorsuch could have discussed.

In an analysis of 10,000 children in the United States, a study found that fathers who took two or more weeks of leave were more likely to be involved in daily childcare activities later on in the child’s life.

When women are not solely responsible for childcare, they can participate more in the workforce.

“Mothers first, and workers second”

Former students of Gorsuch have come forward to dispute Sisk’s allegations. Will Hauptman did not deny that the discussion happened but said that Gorsuch’s tone was more “matter-of-fact.” In Hauptman’s retelling, Gorsuch was just giving frank real talk, not displaying “any animus against a career or group.”

But a second anonymous student confirmed Sisk’s account. This student said Gorsuch told the class that “many female lawyers became pregnant” and Gorsuch “questioned whether they should do so on their law firms’ dime.”

The Supreme Court provided a clear answer to Gorsuch’s question.

In a 2003 majority opinion, the late Chief Justice Rehnquist wrote why the Family and Medical Leave Act needed to be gender-neutral and apply to everyone. Treating women as “mothers first, and workers second” reinforced “a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees.” The National Women’s Law Center cited Rehnquist’s warning in their post about Sisk’s letter.