Dear Atty., Have I Stepped In It Deep Now?
The “Dear Atty” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to here for future editions of “Dear Atty.”
We are adding a new marketing position at our company and as a manager I handled the first round of interviews with applicants. During an interview with an applicant, who previously had been a stay-at-home mom, I asked her if she thought she could handle being a mom and holding down a job. She apparently was offended because she told me it wasn’t legal to ask her questions about her personal life. It seemed like a legitimate question because, as a manager, I want to know if her productivity will suffer if her kid gets sick or she needs to attend a soccer game, etc. So, Dear Attorney, please tell me she was just being oversensitive.
Rut Roh. You may have stepped in it just a bit. But, I have good news and some bad news. First the good news—asking the question was not, in and of itself, “illegal”. The bad news is that the fact that you asked the question could be used as evidence of sex discrimination if the applicant is not hired.
The Law:Federal and state law prohibit discrimination based on sex. Asking interview questions about a female applicant’s family life, marital status or childcare responsibilities may provide evidence of sex discrimination.
Employers often ask questions of this nature due to the assumption that female employees are not as committed to their work or will be absent and less productive than their male counterparts. It is not legal for an employer to make decisions based on stereotypes about men and women, including the very strong cultural assumption that women who have young children will be unable to devote themselves to their jobs.
– Here are some examples of interview questions that will get you in trouble:
– Do you have any children? If so, how many and what are their ages?
– Are you single, married, divorced or engaged?
– What kind of childcare arrangements do you have in place?
– Are you currently taking any form of birth control or fertility treatment?
– What are your plans if you get pregnant?
– Does your spouse work? If so, what does your spouse do for a living?
Think about changing the questions so that you get at the issue that really concerns you: the applicant’s reliability. For example, the following questions are perfectly acceptable, so long as they are asked of both male and female applicants:
– Do you have any commitments that will conflict with your work schedule?
– Do you have any restrictions that would prevent you from traveling?
– Do you anticipate any absences from work on a regular basis?
Remember, when employers assume that women will have a hard time leaving their children, will not be fully dedicated to their jobs, or will be unwilling to travel or work long hours due to childcare responsibilities, they may be engaging in illegal sex discrimination.
So, unfortunately, I don’t think your applicant was being overly sensitive. She is probably just tired of the negative stereotype that is applied to working mothers. Oh, and I hope you hired her. If not, I fear that you and I may be talking in the future.
If you would like additional information about this topic, please contact Pete Albrecht. Pete is the president and a shareholder at Albrecht Backer Labor and Employment Law. He has represented employers for over 28 years.