Neil Gorsuch's 'sexist' comments on maternity leave: the full story

Lucia Graves

Months before Donald Trump even secured the Republican nomination for president, a third-year law student at the University of Colorado Law School met with campus administrators to express her concerns about alleged sexist comments her professor Neil Gorsuch made in class on 19 April 2016.

At the time, Gorsuch, a judge on the 10th circuit court of appeals, had no national profile outside legal circles. Nine months later, when he was nominated to fill a vacancy on the supreme court, the former student – Jennifer Sisk – formalized her complaint in a letter to the Senate judiciary committee, the body overseeing his nomination hearings.

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”.

Sisk took her complaint first to friends, then to the dean’s office in late April, and then, finally, to the Senate as Gorsuch’s nomination hearings got under way. On Friday the upper chamber will hold its final confirmation vote.

As Sisk’s story has attracted national attention, many former students have chimed in with everything from reflections on the class in question to broad generalizations about his character. A second letter submitted anonymously to the judiciary committee affirmed Sisk’s impressions; two other letters, authored by male students and sent soon after, have sought to discredit them. From there the backlash, as exhibited by a National Review roundup of dissenters, picked up speed. Gorsuch himself denied Sisk’s recollection during his confirmation hearings. Though little could directly contradict Sisk’s account, it almost immediately faded from national conversation.

The Guardian interviewed Sisk and four others who recall Sisk’s real-time reactions to Gorsuch’s class in April 2016, as well as her ultimate decision to report Gorsuch to school officials.

Alaska-based lawyer Lauren Goschke, 33, told the Guardian Sisk’s reaction to the class with Gorsuch was unlike anything she’d seen from her friend before. “I’d never heard her say anything like that about any of her other teachers,” Goschke said.

Kate Mattern, a deputy public defender in rural southern Colorado and close friend of Sisk’s in law school, heard about it in the hallway the next day.

“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.’”

Justin Kutner, Sisk’s then boyfriend and current fiance, recalled speaking with Sisk about Gorsuch’s class on the phone on Tuesday evening, as he sat in his car in his apartment complex.

“She’s the most even-tempered person I know and takes everything in stride,” said Kutner, who met Sisk in 2012. So when she floated the idea of talking to school administrators about it, Kutner was entirely supportive.

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.

Sisk said when she met with administrators they not only listened, but told her they agreed with her that presenting a question that’s been deemed discriminatory as an open one would be a misinterpretation of the law.

But although administrators told Sisk they planned to approach Gorsuch on the matter as soon as grades for the semester were submitted, they never ultimately did. “At the end of June, the law school had a transition of deans and, regrettably, preceding that change, no member of the law school administration spoke to Judge Gorsuch about the student’s concern,” Dean S James Anaya said in a statement. The school has apologized to Sisk and to Gorsuch for not bringing the matter to his attention. Sisk, for her part, was happy to forgive what she viewed as an honest bureaucratic mistake.

When questioned directly during confirmation hearings whether companies should be able to inquire about the pregnancy plans of female applicants, Gorsuch dodged the question posed by Senator Dick Durbin.

“Judge, would you agree that if an employer were to ask female job applicants about their family plans, but not male applicants, that would be evidence of sex discrimination prohibited by Title VII of the Civil Rights Act?” said Durbin.

“Senator, I’d agree with you it’s highly inappropriate,” Gorsuch replied.

“You don’t believe it’s prohibited?” pressed Durbin.

“Senator, it sounds like a potential hypothetical case,” said Gorsuch.

When Durbin raised Sisk’s allegations, Gorsuch simply said confidently that she misremembered his question.

“Senator, I do ask for a show of hands,” he said, “but not about the question you asked, but about the following question. And I ask it of everybody. How many of you have had questions like this asked of you in the employment environment, an inappropriate question about your family planning? And I am shocked every year, Senator, how many young women raise their hand. It’s disturbing to me.”

Since Sisk’s claim was publicly posted by the National Women’s Law Center and the National Employment Lawyers Association before confirmation hearings last month, other students from the law school have stepped up to offer their accounts. A second anonymous letter submitted to the judiciary committee supported Sisk’s account, recalling the very discussion around companies’ hiring practices and maternity benefits she mentioned as “strongly gendered”.

But Sisk faced pushback in a flurry of coverage from conservative media that, within 24 hours of Sisk going national with her story, took issue with other media reports that didn’t mention Sisk is a registered Democrat, even though her affiliation had not been relevant to her complaint at the time. But the most relevant counterpoints came from two male students in Sisk’s class, who also submitted letters to the committee.

Will Hauptman, another student in Sisk’s class, released a statement publicized by Gorsuch supporters calling her description “not truthful”. While he acknowledged Gorsuch “did discuss some of the topics mentioned in [Sisk’s] letter, he did not do so in the manner described”. He cited as evidence, Gorsuch’s general air of cordiality and respectful manner of appearance, adding that had anything like what she described happened, it would have “upset” him so much, “I would remember.”

A second letter by Baker Arena said: “I do not recall [Gorsuch] accusing women of taking advantage of paid maternity leave policies much less espousing such accusations as his personal beliefs.”

He also suggested that perhaps Sisk failed to appreciate Gorsuch’s style of pedagogy and how he would “play devil’s advocate in his lectures”.

An office colleague of Sisk’s who previously took a class with Gorsuch, wasn’t having it. “I’m a law student. I know what the Socratic method is,” said the lawyer, who declined to give her name because she is not authorized to speak publicly by her employer. “There was a definite tone of sexism … that I also just thought was part of his general attitude.”

In conversation with that lawyer after class at the office where Sisk interned that year, Sisk recalled her own thinking boiling down to this: “How do I be really good at my career but also when the time comes be a good mother?”

“It was frustrating,” Sisk told the Guardian, “because I was thinking, is this something I’m going to be facing with an employer who thinks we all have to balance this? Or will I be facing this with an employer who thinks this is a woman’s problem?”

If she hadn’t heard Gorsuch endorse the latter view in class, Sisk never would have believed it was a current one. “I thought it was something that would happen to women in the 60s and 70s but I didn’t think it would happen now.”

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