Of course, what they really mean is “may I do it?”, and what they are really asking is, “Is what I want to do legal?”
The employment lawyer usually answers, “it depends,” and then proceeds to ask the client a number of questions about the factual situation, and gives the client a brief discourse on the relevant law.
Given that attorneys and accountants are the most valuable business partners that many businesses (particularly small businesses) have, I think that “it depends” is the wrong answer in a vast majority of cases. The better answer is asking the client “why do you want to do that?”
Let’s face it – we get the laws we deserve. We have anti-discrimination employment laws against certain protected classes because of a history of employment discrimination against those classes. More classes will be added, and more laws created, because discrimination continues. We have laws against retaliatory discharge because too many employers fired people who squealed, instead of fixing the problem being squealed about. We have wage and hour laws because too many employers will undervalue and overwork people who are desperate to feed themselves and their families.
So the next time a client calls and asks, “I hate gay people, and I don’t want to ever hire one. Is that legal?”, I am begging employment lawyers to be good business partners and community citizens, and not give a discourse about the state of anti-gay discrimination legislation in your jurisdiction. Instead, explain to the client why taking a stance against hiring an entire class of population is a poor business practice in general, and how that business practice is not in the best financial interest of the client.
Do this for every questionable employment practice you are asked about. It will save you, and the client, from having to deal with the law that will inevitably follow.
[Author’s note 07/21/11 – Congress introduced a bill on July 18, 2011 that would make the unemployed a protected class by preventing hiring discrimination against them. Don’t say I didn’t warn you. ;-)]