Analysis Law and Policy

Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

Gillian Thomas

The Court has decided, time and time again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. It's not clear whether Gorsuch agrees.

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

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In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination. Most recently, courts have acknowledged that adverse action based on sexual orientation or gender identity is unlawful because they punish LGBTQ workers for transgressing stereotypes about what makes a “real man” or “real woman.” Stereotyping also has been found illegal under other federal anti-discrimination laws, such as those protecting workers older than age 40 and individuals with disabilities.

Following the logic of Judge Gorsuch’s alleged statements to his students, an employer would be prudent to inquire about an applicant’s health, age, or family history of cancer because all of those factors could, in certain circumstances, affect the employer’s bottom line. Similarly, an employer would be justified in asking whether a candidate for promotion has elderly parents or any family members with health problems because caregiving responsibilities can sometimes interfere with work obligations. So long as there is a “true generalization” to be made about a particular group, why shouldn’t the employer act on it?

The answer is simple: Because the Court has found it illegal to do so. The public deserves a Supreme Court justice who will follow that precedent, not applaud employers who flout it.

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