Interesting! I'm not a lawyer either but I definitely enjoy reading about this stuff. Since the program didn't ask the questions though, I wonder how not hiring her for asking them herself would be construed. In this case the program isn't displaying any intent to discriminate, but the applicant is providing information not usually part of their hiring process, not to mention displaying poor judgement and possibly a poor attitude that suggests she isn't going to be much of a team player in any regard.
With the update above, it does seem this program had hired a number of young women who were either pregnant or became so during training, so at least on paper they seem to have been pretty welcoming. I would imagine those women were a little more tactful in how they broached the topic. It also means this applicant had at least 3 people with firsthand knowledge she could have asked that would have given her better info while not ticking off the chair.
The legal nerd in me also wonders: if pregnancy is linked to sex discrimination, and the program would equally DNR a man or woman who stated an intent to maximize their parental leave, they're essentially treating both sexes the same, no? Probably not any good case law in this area but would be interesting to see!
I think that the fact that you DNRed a person who asked these questions is not a problem. There are all sorts of reasons why someone might have been DNRed which are not related to pregnancy. What I do think could be problematic is that it seems like some faculty were discussing her asking about maternity leave in the context of deciding not to rank her. I think that such a discussion would be viewed as very suspicious by a court or jury. Like, yes you can claim that it was the way she was asking and not what she was asking that led to her effectively not being hired, but I think that’s going to be an uphill argument if the plaintiff’s attorney can basically wave around a deposition where some faculty member admits that there was a discussion about how the applicant asked about maternity leave during the meeting where they decided not to rank her. Not only will they wave that around, but they will probably use that to impeach every witness for the program. I imagine this could go something like:
“Dr. PD, you said that you did not consider pregnancy in your decision not to rank applicant X, but isn’t it true that you discussed the fact that applicant X asked about maternity leave when you decided to place her on the DNR list?”
Or
“Dr. PD, do you consider Faculty Member Y to be a trustworthy person?”
“Of course. We work together frequently. They are a very good doctor and they are very trustworthy.” (Very unlikely a program director would malign a fellow faculty member from the stand, regardless of any personal beef they might have)
“In his deposition, Faculty Member Y stated that you had discussed that Applicant X was asking about maternity leave in the meeting where you placed her on the DNR list. Is this true?”
Basically, this is going to put people in the position where they’re either going to have to call fellow faculty members liars or admit that they basically discussed the applicant’s interest in maternity leave and DNRed her in the same breath. This would be very uncomfortable for all involved and would make the program look terrible.
I do think that the program would probably try to use a record of supporting pregnant residents in their defense. I just think that defense is more likely to work in a case where the link between the pregnancy issue and the employment decision is tenuous and less explicit. Like, I think that might be more effective if it was a case where some pregnant faculty member claimed that she was not promoted because of her pregnancy, and the reasons she believed this were the fact that she had been working there for a while and had a bunch of publications, but there were no comments made that implied that her pregnancy was considered. There, I think that the fact that they had promoted other women who had become pregnant during the course of employment would be a pretty strong defense. Here, the issue is that there potentially might be evidence that issues relating to potential pregnancy were discussed when deciding whether or not to rank the plaintiff. If I was the plaintiff’s attorney and the defense made a similar argument in that case, I would probably argue something along the lines of “the defendant is trying to excuse their behavior in this case by offering you many examples of instances where they did not discriminate against applicants, but it doesn’t matter how many times they followed the law in the past because they didn’t in this case. If I walked out of this courtroom right now and punched somebody in the face, the fact that I walked by dozens of people today and didn’t punch them in the face wouldn’t excuse my behavior.”
With regard to your last question, I’m also not sure. Paternity leave is relatively new (and the courts often lag behind social changes by several years). I suspect that the problem there would be that such practices might be construed as interfering with employees exercising their rights under the FMLA. Section 105(a) of the FMLA states:
- (1) EXERCISE OF RIGHTS.--It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title.
- (2) DISCRIMINATION.--It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this title.
By the way, I don’t even disagree that it’s possible for applicants to ask these questions in ways that demonstrate poor interpersonal dynamics worthy of a DNR regardless of the pregnancy issue. I just think that any program making this decision has to be really careful because, if they’re not, the paper trail might look a lot like discrimination even if their motives were pure.
