Just before Judge Neil Gorsuch’s Supreme Court confirmation hearings recently began, a former student alleged that the nominee had commented in an ethics class that law firms can and should be able to ask prospective female employees about their plans to begin a family. Judge Gorsuch denied the allegations, but the coverage raised an important topic: What can employers legally ask you about pregnancy and family planning during your application process?
While the short answer is anything they want, the longer answer remains legally – and ethically – it’s ill-advised for them to do so.
Protections for pregnant job applicants are clear under Minnesota state law
The Minnesota Human Rights act explicitly prohibits employers from asking or seeking information about whether a potential applicant is pregnant, or other protected characteristics, including marital status, national original, sexual orientation, etc. Minn. Stat. § 363A.08, subd. 4(a).
On the federal level, it’s less specific but still arguably clear.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq, bars discrimination in employment on bases of race, sex, national origin, and religion. In 1978, Congress amended the act by passing the Discrimination Act, which explicitly prohibits an employer from making a hiring decision because of pregnancy. But the Act and the EEOC guidelines regarding the Act do not explicitly prohibit employers from asking questions about whether an applicant is pregnant or plans to become pregnant.
In practice, this is “a distinction without a difference.” That means, while it’s technically not illegal to ask questions about pregnancy or parental status during the application process, it can lead to gender discrimination. For example, let’s say your prospective employer asks you if you are pregnant or plan to be, and you answer “yes.” You do not get the job, despite your qualifications that meet the defined hiring criteria, and learn a less-qualified male applicant did. Arguably, your planned pregnancy factored into the decision, and you were passed over because of gender discrimination.
Unfortunately, people do and don’t get hired every day for all kinds of reasons, and it’s often difficult to know exactly why you were passed over for someone else. That said, depending on your situation, it might be worth considering whether your personal situation came into play.
If you believe you were not hired because of your pregnancy status or another discriminatory reason, we encourage you to seek legal counsel. At Schaefer Halleen, LLC, we have extensive experience successfully advocating on behalf of people in your and other discriminatory situations.