A candidate volunteered details about being pregnant during her interview. How should we handle this?
Quick Answer
Steer the interview away from a discussion of pregnancy and toward an evaluation of the candidate based on objective and neutral standards.
Legal Perspective
Ogletree Deakins
Pittsburgh, Pennsylvania
Tread carefully, and watch what is said, says employment law attorney Maria Greco Danaher (maria.danaher@ogletree.com) of the firm Ogletree Deakins.
If an applicant raises the issue of pregnancy, document the discussion to assure any issues raised are addressed. Don’t assume the person is or will be unable to do the job. If the applicant asks for an accommodation, document the request and ask for specifics but avoid discussing medical issues. Double-check federal, state and local laws regarding pregnancy issues and leaves. Remember that postpartum issues also can trigger federal and state law requirements.
Relevant Case Law
Brown v. Sara Lee Corp.
King v. Trans World Airlines, Inc.
Ford v. St. Elizabeth Hospital
HR Insight
Gordy's Marine
Fontana-on-Geneva Lake, Wisconsin
I wouldn’t respond to anything about it in the interview, says HR manager Jaime Offutt. A job interview is not the appropriate time for that discussion.
If/when you hire her, then ask if she needs accommodations, when she is due, etc. A candidate telling you that they (and their spouse, if applicable) are expecting should NEVER be a part of the decision-making process for hiring. What matters is, can the candidate do the tasks needed for the job?
Oriana House Inc.
Akron, Ohio
We developed an in-house “Supervisor Guide” that has an entire chapter devoted to interviewing and selection for situations like this, says Director of HR Jodi Glitzenstein. The guide includes samples of legal and illegal interview questions in the chapter.
We also conduct training for supervisors on proper methods of interviewing. During the training, we role-play various scenarios (e.g., candidates disclosing disabilities, disclosing a lot of personal information like this, etc.) and coach them on how to respond to the candidate. HR also offers to meet with managers to help them develop interview questions and talk to them about different issues that may arise in the interview.
CertiK
New York, New York
If a candidate disclosed they were pregnant, I would advise the manager to consider this superfluous information and to disregard it when it came to candidate evaluations, says HR Leader Erin ImHof. Sometimes, candidates end up sharing information that was not asked, and it shouldn’t impact a hiring decision.
We hold manager training that covers interviewing and hiring and provide a list of online courses for our current and new managers, which includes recruiting best practices. We also document our recruiting process, so managers can reference that document.
We help managers create standard interview questions for each interview round, so they have non-biased questions, and also provide them with a variety of sample follow-up questions if needed. Our team meets with hiring managers closely throughout the process to assist when needed.
The Cost of Noncompliance
Pregnancy discrimination: Company pays $10K to pregnant applicant
Who was involved: A Chick-fil-A franchisee in North Carolina and a pregnant applicant.
What happened: The EEOC lawsuit alleged the applicant applied for a position as a team member when she was six months pregnant. During the interview, the owner asked a number of pregnancy-related questions, including when she was due; what her childcare plans were after delivery; and how much maternity leave she planned to take. Three days later, the owner called to inform the applicant that she was not being hired and suggested that she call back after she had the baby and made childcare arrangements.
Result: The company agreed to pay $10,000 to the woman. Under a two-year consent decree, it was also required to:
- Develop and implement a policy that prohibits pregnancy discrimination.
- Conduct annual training on pregnancy discrimination for employees, supervisors and managers.
- Report to the EEOC regarding all of its job openings and all of its hiring decisions regarding pregnant applicants for the duration of the consent decree.
Info: Chick-Fil-A Franchisee at Concord Commons to Pay $10,000 to Settle EEOC Pregnancy Discrimination Suit, 6/5/14.
Staffing agency pays $40K to settle EEOC’s pregnancy discrimination claim
Who was involved: Labor Source, LLC, d/b/a Wise Staffing, one of the largest staffing agencies in the southeast, and a pregnant applicant in Mississippi.
What happened: The EEOC’s lawsuit alleged that a hiring official from the staffing agency interviewed the applicant for a data extraction clerk position with a client company. During the interview, the applicant informed the hiring manager about her pregnancy. After a second interview, the hiring manager told the applicant that the staffing agency decided to hire someone else. The hiring manager allegedly said she’d reach out to the pregnant applicant later – but she never followed up with the woman. The EEOC alleged the staffing agency hired “less-qualified, non-pregnant individuals” instead of the pregnant applicant.
Result: The company paid $40,000 in back pay and compensatory damages to the pregnant applicant who was not hired. Under a two-year consent decree, it was also required to:
- Stop refusing to hire pregnant women.
- Provide anti-discrimination training, including training on Title VII and the Pregnancy Discrimination Act.
- Administer an exam after the training to all employees involved in the hiring process, and require a score of 90% or better as a pass rate.
- Submit reports to the EEOC on the pass/failure rates of hiring officials.
- Submit to the EEOC all received complaints of discrimination and the staffing agency’s response to those complaints.
- Post a notice about the settlement and employees’ rights.
Info: Labor Source / Wise Staffing to Pay $40,000 to Settle EEOC Pregnancy Discrimination Lawsuit, 8/6/21.
‘Any baby plans?’ Manager’s texts to applicant prompt EEOC action: Company pays $70K
Who was involved: The Glenridge on Palmer Ranch, an upscale retirement community in Sarasota, Florida, and an applicant who was not offered a position.
What happened: A manager at the company texted the applicant to ask when she planned on having another baby, explaining, "With this position, it doesn't leave a lot of time off for long periods of time." The company then declined to interview the applicant. Instead, it offered the job to “an older female that it did not believe would become pregnant,” the EEOC’s suit alleged.
Result: The company paid $70,000 to resolve the suit. It also entered into a three-year consent decree and agreed to the following post-resolution relief:
- Adopt and distribute an updated policy against sex discrimination.
- Conduct annual training on sex discrimination for hiring officials.
- Post a notice about the lawsuit.
Info: The Glenridge to Pay $70,000 to Settle Pregnancy Discrimination Lawsuit, 8/9/19.
Key Takeaways
- The Pregnancy Discrimination Act bars covered employers from discriminating on the basis of pregnancy when making hiring decisions.
- Asking follow-up questions after a candidate voluntarily discloses her pregnancy in a job interview exposes the employer to a potential claim of unlawful pregnancy discrimination if the candidate is not hired.
- Steer the interview conversation toward a discussion of whether the job candidate can meet the job’s essential requirements.
- Always evaluate job candidates based solely on their ability to do the job.
- It is permissible to ask all applicants neutral job-related questions that may be coincidentally related to pregnancy, such as whether the applicant can meet applicable job attendance requirements.
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