She Didn’t Tell Me She Was Pregnant. Do I Still Have to Hire Her?
Picture this: You hire an employee who seems to be a perfect fit for your team. You formally offer her the job, train her up, and her first week goes swimmingly. Then, just as she’s starting to gel with you and the rest of your employees, she drops a bombshell: your new employee is pregnant, and she’s expecting to deliver in just a few months. Do you still have to keep her on board?
It’s a question that comes into the Solution Center more than you might think. Admittedly, it can be stressful to hire someone new only to find out that they will almost immediately be taking a leave of absence from work.
On top of the burden of being short handed while that employee is on leave, before that leave period begins there may be a need to allow for additional accommodations if your new employee experiences severe morning sickness, is concerned about working with hazardous substances like nitrous or x-rays, or is otherwise temporarily disabled by her pregnancy.
Despite this potential burden on your business, it’s a very bad idea to deny someone a job because you found out they are pregnant. Here’s why:
Pregnancy Discrimination Is Against the Law
Discrimination against a pregnant employee is illegal under the Pregnancy Discrimination Act (PDA) of 1978 and this law applies to all steps in the employment process, including hiring.
Under that law, it is not an employee’s — or for that matter, an applicant’s — responsibility to let their employer know they are pregnant. And looking for a job is hard enough, so an applicant isn’t likely to raise a topic that they fear might bar them from getting the job. For your part as an employer, it’s also important to know that their right to withhold that information is legally protected.
The only time an employee should (not must) let an employer know that they are pregnant is when the pregnancy is going to affect their work and will therefore require them to request an accommodation or maternity leave.
Though you might be tempted to preempt a request for accommodation by removing pregnant employees from duties that could potentially put them or their unborn child at risk, it is actually not okay for an employer to take job duties away from an employee as a result of pregnancy. What you can do is let your employee know about the potential for exposure to hazardous substances, and then allow them to request an accommodation (such as alternative job duties or additional breaks for the duration of their pregnancy) should they desire one.
If you find yourself thinking something like, “Had I known she was pregnant I wouldn’t have hired her,” stop short of saying it out loud — doing so is akin to admitting to using discriminatory hiring practices.
Your State or Locality Might Offer Additional Protections to Pregnant Employees Not Covered by the PDA
Many state and local laws extend the requirements of the PDA to smaller employers, including businesses with just one employee. Even if your business is not subject to the requirements of the PDA (which applies to employers with fifteen or more employees), there’s a chance that those protections are offered to pregnant employees at the state, county, or city level.
Even if there is no protection offered specifically to pregnant employees where your business operates, those protections could fall under other state or local statutes, including laws regarding sex discrimination, age discrimination, or family medical leave.
Then there’s the sheer tenacity of employment lawyers looking to make a name for themselves to think about. Whether or not your state has a law in place aimed at protecting pregnant employees, a former employee showing up at their doorstep claiming they were fired because they were pregnant would make many attorneys salivate.
The Optics Will Not Be in Your Favor
If you fire or refuse to hire an employee because they are pregnant, you can bet that bit of information is going to wind up on social media, at the least. If you land a court case from the debacle, or even the prospect of a court case, you might even find your business cast as a villain on the local news.
Nobody wants their business known or talked about as the one that fired a defenseless pregnant woman for discriminatory reasons, so consider that if you find yourself looking for ways to get rid of a pregnant employee.
Treat Pregnant Employees (Even Newly Hired Pregnant Employees) Just Like Everyone Else Who Works at Your Business
Though it may be difficult to hear, if you find that your newly hired employee is pregnant, it’s in your best interest to treat her just like you would a veteran employee in the same situation.
Provide her with a copy of your employee handbook so that she’s current and on notice with respect to your business’ policies, let her know about potential exposure to hazardous substances, provide leave when needed, and engage in an interactive process to provide accommodations, if necessary.
Plus, there are some things you can do to protect your practice. Sometimes you may be able to request a doctor’s note to make sure an employee is ready to resume her duties during or after pregnancy, for example. Still, some states are restrictive about what you can require a doctor’s note for when it comes to pregnancy, so we always advise that employers speak to an HR expert (like those at the Solution Center) before asking a pregnant employee to follow such a directive.
Finally, even from a financial perspective, it’s likely going to be in your best interest to simply allow a pregnant employee to continue working for you, and then take a leave of absence when the time comes. When you factor in the potential costs associated with litigation, as well as the stress and opportunity costs of fighting such a case, providing two months of leave will almost always be a more favorable option than termination.
Though it may cause a mild HR headache, your best bet is to treat all employees at your business consistently and in alignment with the policies in your handbook, whether they’re new or long-established, pregnant or not. Bring in a temporary employee to pick up some of the slack if you have to, but resist the urge to terminate (or refuse to hire) an employee simply because they are expecting.
Want to know more about your rights as an employer when it comes to pregnant employees? Watch our on-demand webinar, We’re Pregnant! Workplace Maternity Policies (and So Much More).