It was recently reported that one of the larger law firms in the country had begun the practice of asking female attorneys in its litigation group whether they anticipated becoming pregnant in the upcoming year. The firm justified the question by stating that it was designed to assist in budgeting. The report did not state whether the firm was also asking their male associate attorneys whether they were planning on becoming fathers in the next year, leading many to conclude that either the firm is anti-pregnancy or it doesn’t expect that men will take any significant amount of time off for the birth of their baby.
As one can guess, questioning whether female associates were planning a pregnancy didn’t sit very well with them, or many others who read the same report. Immediately, there was social media buzz on the topic with many stating that the question is illegal. Actually, it’s not. It’s certainly insensitive, maybe even ignorant, and possibly evidence that certain firm leaders might make career decisions about their female associates based on how they answered that question. But asking the question is not itself illegal.
It is more accurately stated that an employer should carefully avoid asking for information that could form an illegal basis for making an employment decision, because if the employee or candidate suffers an adverse employment action, he or she, and maybe the EEOC or a court of competent jurisdiction, might find that the employer based its decision on the information they should have avoided. So, for instance, if the prominent law firm who asked about future pregnancies, discharges, demotes, or fails to promote an associate who foolishly answered that she was planning on being pregnant in the next year, you can pretty much bet that the associate will immediate relate the employment decision to her answer of that question. This puts the law firm employer in the position of having to defend against a lawsuit and all of the potential damage to reputation and expense that can cause, even if the employer shows that it had good reason for taking the adverse action, unrelated to the possible future pregnancy.
Here are some other bad questions to ask employees or job candidates:
- Will you have child care if you need to work late or on weekends?
- Who will watch your children when you have to travel for us?
- How much longer do you plan on working now that you have a medical condition?
- How much longer do you plan on working given your current age?
Even if the reason for asking questions of employees or job candidates is innocent, employers must be aware that asking for information, the use of which in making an employment decision would be illegal, is always a bad idea. A good idea is to avoid questions of employee and job candidates which touch on prohibited bases of employment decisions, but encourage employees to share plans that might impact their ability to perform their job in the customary way so that you, as the employer, can analyze the appropriate and lawful response.