Many women find themselves job hunting or applying for promotions at work while pregnant. They may wonder if they have any protections due to their pregnancy, and whether they have a duty to inform prospective employers about their pregnancy. This blog post is intended to give pregnant women the framework to think through the issue of whether and when to disclose their pregnancy, it is not legal advice.
Legally, a person cannot be denied employment due to their pregnancy status. Practically, it is very challenging to prove that an organization made a hiring decision based solely on a discriminatory reason, such as pregnancy, rather than a non-discriminatory reason, like having selected a more qualified applicant. Therefore, pregnant women looking for work may feel that they are being discriminated against due to their pregnancy, but are often short on evidence to confirm their hunches.
Under the law, when interviewing candidates for a job, an interviewer should not ask about family status, e.g. do you have kids? or are you pregnant or thinking about becoming pregnant? Realistically, if you are asked those questions, you need to decide how to best answer without harming your chances of employment by speaking out against the interviewer. You should try to bring the conversation back to your ability to do the job while minimizing comments about your personal life.
If you are pregnant while interviewing, and are wondering if you should disclose your pregnancy, know that you do not have a duty to disclose your pregnancy to a potential employer. But, if your pregnancy will prevent you from performing the essential functions of the job you are applying for you may want to consider disclosing while explaining how you are able to perform the job. Employees must be able to perform their “essential job functions,” with or without a reasonable accommodation, including any reasonable accommodation for your pregnancy. Therefore, if you know you are applying for a job that your pregnancy will prevent you from performing, it may be best to disclose your pregnancy during the interview process.
What does this mean? If you are applying for a job, and an essential function of that job is something that the timing of your pregnancy will likely preclude you from doing, e.g. managing an event that takes place around the time of your due date or when you would be on maternity leave, or traveling 50% of the time, you may not be able to perform the essential functions of your job. You do not have a legal duty to disclose your pregnancy to your potential employer, but after you are hired, and the employer has the right to assess whether you are able to perform the job, you could be fired for being unable to do it. This is true because your pregnancy does not automatically protect you from termination if you cannot perform the essential functions of your job with or without a reasonable accommodation.
It's understandable that applying for a job while pregnant can be a stressful situation to find yourself in. Once you have received an offer, be clear and professional about your timeline. Inform the employer of your due date, acknowledge that you will be out for a period of time, but reiterate why you are a good fit for the position.
As with all potential legal matters, the facts are critical. If you think you are being discriminated against, you can contact our office for a fee-based consultation. You can also contact the Equal Employment Opportunity Commission, if the employer has 15 or more employees, or your local anti-discrimination agency, such as the New York State Division of Human Rights, to file a complaint.
