Pregnancy Discrimination Against Current Or Prospective Employees

I never fail to be surprised by the number of employers who treat pregnant employees, or pregnant prospectives employees, as undesirables.

My experiences show that a pregnant woman has virtually no chance of being hired, if the employer has any hint of it. Some employers are so determined not to hire a woman who may need maternity leave in the future that they’ll casually sneak the issue into the hiring process, either by asking vaguely if the woman expects to be able to work full time without interruption, or by steering the conversation to family (“So, I bet you have kids!  No?  They’re so much fun!  Plans to start one?”)   I’ve represented many women who’ve lost their jobs after they disclosed they were pregnant, or while out on maternity leave, or after returning.   Sometimes I’ll hear a friend say, “Well, I just think that if I’m interviewing and pregnant, I need to be honest about it and tell the employer.  It’s just fair.”

Hard to say what’s fair, really.   The law does not allow an employer to discriminate against potential applicants because they’re pregnant.  Women who happen to be pregnant while unemployed are as entitled as men to be hired.  That seems fair to me.   Pregnancy is no different than any other health condition that requires an employee, male or female, to miss time.   Expectant mothers should not be singled out.  But they are.

Examples are endless:

  • A 33-year old supervisor was repeatedly congratulated after disclosing she was pregnant, and assured her leave was approved and her job safe.  After giving birth and toward the end of her maternity leave, she began calling to work out a precise return date, but her boss wouldn’t return her calls. When she finally talked to the HR director, she was told that the company thought that she had quit, and that while she could apply for any open positions, her job had been filled and she could not return to it.  There was no mistake here.  This was a conscious decision by the employer to deprive the woman of her job.
  • A 26-year old data processor confirmed her maternity leave and left for several weeks to give birth.  When she called to set a return date, she was told that the employer didn’t actually offer maternity leave, and that she was deemed as having voluntarily resigned.  The company refused to rehire her.
  • A 34-year old clerical worker had been “written up” 65 times in the past, but never suspended or fired.  It was clear this employer used “writeups” to document anything and everything; indeed, all the employees in that location had dozens of these bogus “writeups,” but no one was fired for them.    But when she announced she was pregnant, she was written up one more time and immediately fired, based on her “long history of discipline and poor performance.”  It was clear the employer accumulated these writeups, sometimes for years, and never took any action on them unless the employee was doing something the employer didn’t like.  Here, it was the fact that the employee needed six weeks off for maternity leave.

So, if you’re pregnant and looking for work, what’s the right thing to do?  Really, it’s a personal choice.  I wouldn’t do it.  But you might and, if that is the “right” thing to do in your mind, then that’s the right thing to do for you.  The law generally does not require it.  Generally, employers are not permitted to ask a prospective employee if she is pregnant or planning to become pregnant.

So I can’t offer guidance on whether you should disclose it during the hiring process.  I can only tell you the odds of you being hired after disclosure are, based on my 25 years of experience, very low.  And the earlier in the hiring process you disclose it, the greater the odds you’ll be screened out.   If you disclose it on the application, you may never get an interview.  If you disclose it during the interview, you may never get a call back.  If you disclose it immediately after being extended the offer (e.g., HR Chief: “Donna, we’ve decided to extend you an offer!”  Donna: “Great!  Guess what!  I’m pregnant!”), you may find your first weeks on the job very unpleasant.   In some instances, you might find the offer withdrawn.

The best reports I get back are from women who treat pregnancy and the need for time off just the same as any employee would who needs several weeks off, whether for an on-the-job injury, a car accident, or any other situation that requires a bit of leave.  They’ll disclose it in the normal course of employment, once they’re working, as they might a scheduled surgery.    Of course, if there is something about the job that would place you at risk while pregnant – such as if you’ll be around chemicals or extremely loud noises, or if you’ll need to perform physical tasks that may place you or your baby at risk – then you may want to seek other work or delay your return to employment.  I can only share my experiences, which is that treating it in a normal manner, as opposed to drawing a spotlight on it, during the hiring process, seems to provide the safest path to a good hiring and employment experience.

I would be glad to talk to you if you’re encountering a problem relating to an employer, or prospective employer, that is treating you differently because you are expecting.  There are a range of laws protecting you, including the Pregnancy Discrimination Act (PDA), the Family & Medical Leave Act (FMLA), and the new, revised Americans With Disabilities Act, effective January 1, 2009.  The new ADA may in some cases may provide protection for pregnant employees.  Recent actions by the federal EEOC, the agency responsible for investigating some workplace discrimination laws, indicate that it is interpreting the new ADA as providing pregnancy-discrimination protection.

I have long considered pregnancy discrimination one of the worst forms of discrimination, in part because it can turn what should be the most joyous moment in a parent’s life into one of the worst.  Juries consider it terrible, too, and they react harshly when they are asked to render a verdict on it.

Categories: Disability Discrimination, Gender Discrimination, Pregnancy Discrimination

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