Cynthia Lazar answers labour & employment questions in The Globe and Mail.
One of the HR staff at our company recently asked me if I was planning to get pregnant soon. She was really casual about it, so I’m not even sure if it was on purpose, or if she was actually trying to dig for info. Regardless, is this legal? Should I be reporting this to someone?
Cynthia Lazar, lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg
It is not illegal to ask an employee or job applicant if they plan to get pregnant, but it is ill-advised. Employers are prohibited from discriminating against existing employees (or job applicants) because of their sex. “Sex” includes sex-determined characteristics or circumstances, such as pregnancy, the possibility of pregnancy or circumstances related to pregnancy such as breastfeeding.
When your employer asks if you are planning to get pregnant, any subsequent decision made about your employment becomes suspect. Were you denied a promotion, kept off a particular project or refused a training opportunity because there was a better candidate, you were needed elsewhere or some other valid operational reason, or because the employer was concerned about potential disruptions caused by a maternity leave or a decision to stay home with a baby?
The employer may have reasons for these decisions unrelated to your family plans, but once the question is asked, especially by someone in HR, the seed of doubt is planted that the decision was discriminatory, and the employer is at risk of receiving a human rights complaint. A complaint puts the employer in the difficult position of proving that its decision was not influenced by a potential pregnancy.
You may consider reporting the conversation to a different HR person, a manager or your union, or emailing the HR person to say you were uncomfortable with the question. This creates a paper trail to prove the question was asked in case a suspect employment decision is made in the future.
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