Dear Atty: Pregnancy disclosure and the law

Dear Attorney:

My company recently hired a new employee, Mary, to work on an important project for a new client. The client’s project has a nine-month completion date. Unbeknown to me at the time of hire, Mary also was working on a project of her own with a nine-month completion date; she told me today that she is pregnant. My concern is that Mary will need time off during this crucial project for our new client and that the completion could be delayed. I also feel betrayed by the fact that Mary did not disclose her pregnancy until after she was hired. What should I do? Can I fire Mary for not telling me about her pregnancy during the hiring process?
Baby Blues


Dear Baby:

I am sorry that you have found yourself in the midst of this immaculate deception. The issue of whether a pregnant woman should disclose her pregnancy during the hiring process is a tricky one. On one hand, many women believe, perhaps rightfully so, that if they disclose their pregnancy the employer will find an excuse not to hire them. On the other hand, many employers feel deceived when a woman waits until after she has been hired to disclose her pregnancy; this often has a negative effect on the employment relationship going forward.

In order to address your concerns, let’s start with what the law says:

The Law: First, you need to know that an applicant for employment has no legal duty to disclose her pregnancy. Second, pregnant women are covered by a federal law called the Pregnancy discrimination Act (PDA). Under that law, discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act. Essentially, the PDA requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work. Stated even more simply, the PDA views pregnancy as a type of temporary disability. As such, an employer must treat the pregnant employee in the same manner that it would a non-pregnant employee who is suffering from a temporary disability, e.g., a back injury, etc.

With this in mind, consider how you would handle the situation if, instead of hiring Mary, you had hired a male employee, Joseph. Let’s say that eight months into the client’s project, Joseph injured his back and needed to be off work for a month. Even though Joseph’s absence would not be covered by the Family and Medical Leave Act (because Joseph had not been employed long enough to be covered), you undoubtedly would allow Joseph the time off to recuperate and would not terminate his employment. The PDA requires that you treat Mary in the same manner.

It also is worth noting that the Equal Employment Opportunity Commission (EEOC) has heightened its scrutiny of pregnancy related claims. In short, this is an area that is fraught with perilous perils.

The best approach to take with Mary has nothing to do with the law. You should meet with her and explain your concerns regarding how the pregnancy may impact your client’s project. You should invite her to suggest possible solutions as to how she can balance her pregnancy and your company’s needs.
I can appreciate that my response likely is unsatisfying. At a gut level, it feels wrong that your company cannot simply fire Mary and hire someone else who actually will be available to complete this important client project. If you were to do so, however, I fear that, in addition to Mary’s baby, a lawsuit will be born.