Probably. Proving this form of discrimination requires evidence of intent and is never a sure thing, but this is pretty suggestive of unlawful bias based on pregnancy.
It’s official. You peed on a stick and saw the sign. You are about to enter the next phase of your life. But now what?
Finding out you are pregnant should be an occasion for celebration, but it can also lead to anxiety or, even worse, unfair treatment on the job. You may start asking yourself questions: How and when should I tell my boss about my pregnancy? What if I need to take time off for prenatal appointments or morning sickness? What should I do if I think I’m not being treated fairly at work because of my pregnancy or impending parenthood? What are my legal rights as a pregnant woman, and which laws cover me?
This chapter aims to answer these questions and others you may encounter during your pregnancy. We start with a discussion of how to break the news of your pregnancy at work, including how to handle interview questions about pregnancy. Then we review the Pregnancy Discrimination Act and how it does (and sometimes doesn’t) protect you at work. In addition to describing the law, we offer tips on how to handle situations not technically covered by the law. We move on to discuss how the law may help you get a job modification to accommodate your pregnancy. Finally we tackle the topics of illness and prenatal care and whether you are entitled to any time off for your health needs while pregnant. Ready? Let’s get started.
Interviewing While Pregnant
What if you are trying to nail down a new job while pregnant? How do you handle that? First of all, you are not required to disclose your pregnancy to a potential employer, even if your bulging belly gives it away. You may decide to address the issue head-on and confront any assumptions your interviewer may have about your ability or intentions. But that’s up to you. Generally speaking, potential employers should not ask you about your pregnancy or family plans during the interview process. Such questions could indicate discrimination. Although not all questions are illegal, they may be if directed at only some people (i.e., women) and not others. For example, an interviewer can’t ask only women if they have children, and not ask the same question of men. Also, if you live in a state with more protective laws, certain questions may be expressly prohibited. (Check the state-by-state guide on page 201 for more information.)
If you are suspicious of an interview question, first make a mental note, so that you can jot it down after the interview for your records. (Some helpful advice: it’s always a good idea to take notes with dates of anything that smells fishy.) Then, instead of calling out your interviewer, try to address his or her underlying concerns while indicating that you don’t think the question is appropriate.
Here’s a hypothetical example:
Christina is interviewing for a job as the buyer for women’s apparel at a large nationwide clothing store. She has excellent credentials and nearly seven years of experience in the business. Her current position, as an assistant to a fashion designer, has required her to work late nights and travel extensively. She recently got married and is looking for a position that will allow her more control over her schedule in anticipation of starting a family.
Interviewer: So, I see that you’re working for Bob Duran. That’s a plum job! Why would you want to leave?
Christina: Working with Bob has been a tremendous opportunity for me, but I’m looking for a different kind of experience at this point.
Interviewer: And why is this job the answer?
Christina: I am eager to take on new responsibilities and apply my proven skill set to this position as a buyer, where I can have more creative control than as an assistant. I learned a ton from Bob, but it’s time to break out on my own.
Interviewer: He does cast a large shadow . . . So are you willing to put in Bob Duran–type hours in this job? We really need someone who will put in 110 percent. Our last buyer was great, but she had a baby and wanted to work part-time, and that just wasn’t going to work.
Christina: Well, I am certainly willing to work hard and get the job done.
Interviewer: But you also recently got married, right? Do you plan on having a baby soon?
Christina: I am really just enjoying being a newlywed at this point. My career is a major priority for me, and I am fully prepared to do an excellent job in this position no matter what my home life looks like. I have a solid work ethic and am excited to contribute to the team.
You’ve done your best interview jujitsu to deflect interview questions about your pregnancy or family plans, but you still don’t get the job. What now?
First, you should know what the law prohibits. An employer cannot refuse to hire you because you are pregnant and may not consider your pregnancy or possible pregnancy when deciding whether to hire you. The law entitles you to be judged on your capacity to do the job. For example, an employer can’t base his or her decision not to hire you on the assumption that, as a pregnant woman, you might have difficulty doing your job at some point or because he or she thinks customers would not want to deal with a pregnant woman. Similarly, an employer may not refuse to hire you based on the assumption that because you have (or will soon have) small children, you’ll be a distracted and unreliable employee. However, the law allows an employer to refuse to hire you if you cannot perform the major functions necessary to the job. If you disclose your pregnancy and indicate that you will need an extended leave during a time when the employer needs all hands on deck or indicate that you will not be able to work the required hours for the job, an employer might legally consider that information in refusing to hire you.
Think back to your interview and any other comments or interactions you encountered during your application process. If you have a strong sense that an employer improperly considered your pregnancy in the decision not to hire you, you may want to reach out to a lawyer for specific advice regarding your situation. It can be hard to prove that discrimination was at the heart of a decision not to hire you, but a lawyer can help you determine your best options.
What if you are offered a job, and the employer doesn’t know about your pregnancy? Again, you are under no obligation to disclose your pregnancy. In fact, if you do tell your new employer and the employer withdraws the offer, that alone could be illegal, and you can seek help from a lawyer. However, you may want to discuss your situation openly before accepting the job if you are concerned about how your pregnancy might interact with the job responsibilities. Also, keep in mind that you could risk the goodwill of your new boss if you keep this information to yourself and then announce, shortly after starting the job, that you are pregnant and will need time off. Assuming you don’t want to start your new job off on the wrong foot, honesty might be the best policy.
CAN WE TALK? BREAKING THE NEWS OF YOUR PREGNANCY AT WORK
Many women we talk to say how afraid they are of telling their boss about their pregnancy. This fear is real and often based on true stories of women who lost their jobs after announcing their pregnancy. Here are two of them:
I received a FedEx envelope at my door one morning; the owner of the gallery had been informed (from a colleague) that I had recently learned I was pregnant with my second child, [and] he felt that was an opportune time to “dismiss” me from my position as I would not be, as the letter of dismissal stated, “able to fulfill [my] obligations as Gallery Director.”
I got fired from my job at a private ambulance exactly one week after telling my boss I was pregnant. I was almost five months along. He immediately started looking for a reason to fire me. And he finally created one. You know what he did? He took the power stretcher off my truck and replaced it with a manual one (the kind you have to heave up to get it up/down/in/out the ambulance). I saw the power stretcher in the garage, unused and working perfectly, so I put it back on my truck, and used it to transport three patients. He then fired me for switching equipment without his permission . . . The icing on the cake? He fired me one week before I was eligible for unemployment.
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