‘Lean In’ to lawsuits: firms should avoid Sandberg’s baby advice, say lawyers

Sheryl Sandberg, a powerful Facebook(s fb) executive, wrote Lean In to encourage America’s women to seek and take  leadership positions in the workplace. The book, released in March, remains a national best-seller and has sparked a national conversation about women and work.
One of Sandberg’s key suggestions is for firms to be more open about discussing careers and maternity issues. She describes her own practice of asking employees about pregnancy directly. She wrote:

“But after watching so many talented women pass on opportunities for unspoken reasons, I started addressing this issue directly. I always give people the option of not answering, but so far every woman I have asked has appeared grateful for a chance to discuss the subject.”

Despite Sandberg’s advice, however, it’s unlikely that many executives will be discussing pregnancy at work any time soon. A survey of employment lawyers by Law360 (sub req’d) revealed that all of them strongly counseled their clients not to follow Sandberg’s suggestion.
“This is the right idea with the wrong approach .. It really opens up the company and yourself to all kinds of liability,” Lynn Kappelman of Seyfarth Shaw, told the publication. Other veteran lawyers echoed the sentiment. (Sandberg herself appeared to recognize this possibility, describing the topic in Lean In as a “heart attack” for lawyers).
The resulting situation — in which everyone likes the idea of giving women a chance to talk about maternity but no one dares do it — may provide more grist for the debate over whether workplace pregnancy should be addressed on a cultural level or, instead, on a legal and policy one. (My colleagues, the GigaLadies, offer an excellent overview here.)
For now, an employer asking about pregnancy is not per se illegal, but it can be grounds for a lawsuit under the Pregnancy Discrimination Act or related state legislation; in the last month, Chik-Fil-A and a Washington law firm are among the employers fined under the law. As a result, it’s almost certain that lawyers will continue to advise their clients to avoid the sort of exposure that would come with adopting Sandberg’s Lean In recommendation.
Sandberg’s recommendations also coincide with recent studies that show America’s maternity law are an outlier compared to other developed nations. Whereas countries like Canada guarantee paid benefits for pregnant mothers through the national unemployment system, America’s system is closer to those in Swaziland and Liberia, a McGill University study reports.