Is it lawful to not hire a pregnant woman because she’ll need time off for maternity leave?

We all know that employers subject to Title VII and the Pregnancy Discrimintation Act (PDA) cannot discriminate against pregnant women. But what happens when you want to hire someone, only to realize they will  be taking maternity leave at either 1) a critical time in the business calendar and/or 2) while they are on a probationary period and not eligible for any type of leave?

1)      Take a look at your compelling business considerations. Is it imperative that the employee not take a leave of absence during the time in which maternity leave would be necessary? For example, a CPA firm would find it critical that a prospective employee be able to work not just fulltime, but overtime, from January through April. Needing leave during that timeframe could easily be a deal breaker, regardless of the reason for the absence. An insurance company, hiring a secretary, on the other hand, probably would not have such a consideration. If you decide to not hire the pregnant applicant, do not forget to document your business considerations.

2)      How have other applicants been treated? Consistency is key. If you treat pregnant applicants different from non-pregnant applicants, you can land yourself in a lot of hot water. For example, if you hire a man who needs time off to care for a sick relative but not a pregnant woman because she will need maternity leave, everything else being equal, that looks pretty much like a discriminatory action. On the other hand, I would also be concerned about hiring a pregnant applicant and granting her leave she was not entitled to when other employees had been denied leave in similar circumstances.

3)      If you do not have a compelling business reason, should you inconvenience yourself and your staff by hiring a pregnant woman? From a purely practical standpoint, the answer might be “yes.” Good employees who stick around for more than couple of years are hard to find. If you find a good fit, maybe it’s worth going without her services for a couple of months or hiring a temp in order to get someone who will be with you and serve you well for years to come. In theU.S., we often want what is easiest and quickest but that attitude rarely yields good, long-term results. (Note: if you think dealing with the inconvenience is just not worth the hassle, you still have to make sure you are not discriminating on the basis of sex.)

The Seventh Circuit has provided us with some good cases explaining how PDA applies in these types of situations. In Marshall v. American Hospital Association (AHA), 157 F.3d 520 (7^th Cir. 1998), the issue was not exactly whether to hire but whether to fire.Marshall was hired despite concerns about her lack of healthcare knowledge, but it seems she did not learn as quickly as she said she would and this affected her job performance. She was also told how important her position would be in preparing for a September fundraiser that accounted for 40% of funding. It would so happen that plaintiff would need maternity leave during the very months she should have been preparing for the big fundraiser. The hiring official did not know she was pregnant at the time of the interview, butMarshall was fired after letting her supervisor know she was pregnant.

While Marshall asserted she was terminated because she was pregnant, the court said this:

“ ‘As previously noted, the PDA “requires the employer to ignore an employee’s pregnancy, but … not her absence from work, unless the employer overlooks the comparable absences of non-pregnant employees.’ Troupe, 20 F.3d at 738.Marshallmakes no showing that AHA terminated her because of her pregnancy rather than because she was planning an extended absence during the busiest time of her first year as an Associate Director.Marshall presents no evidence that a non-pregnant, probationary employee who was going to be on extended leave in the months immediately preceding the annual conference would not have been terminated.”

Here the court looked at the importance of Marshall not being off work during the time of her maternity leave, as well as whether evidence existed to show that Marshall was being treated differently because she was pregnant.

Now, all that said, you still have to make sure your workplace policies do not have disparate impact on pregnant applicants or employees. For example, if your policy states that all employees must be 5’8” tall or taller, that policy has a disparate impact on women because most women are not that tall. On its face, the policy seems neutral but it is clearly designed to eliminate women from the talent pool without, we will assume, a compelling business consideration. In Troupe, 20 F3d 734 (7^th Cir. 1994), the court explained the proper way to look at disparate impact: “But, properly understood, disparate impact as a theory of liability is a means of dealing with the residues of past discrimination, rather than a warrant for favoritism. Finnegan v. Trans World Airlines, Inc., 967 F.2d 1161, 1164 (7th Cir.1992).” The court was intent on making a point in this case that PDA did not require favoritism. In fact, the court said, “Employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees[.]” Hmmm, not sure I would take this as good business advice for retaining top talent. Nonetheless, you see where the court is going with this.

I did state that in our hypothetical, the applicant would not be eligible for any leave. I just want to clarify:  If you hire a pregnant woman and two months later, she needs maternity leave, clearly she is not eligible for FMLA. But if your company provides short-term disability, you have to provide the same benefits to pregnant women as you do to other employees with short-term disabilities. See 29 CFR 825.702(f) of the FMLA regulations. In addition, the EEOC has previously stated that not allowing any leave to be taken in the first year of employment may violate PDA. (Note thatMarshallwas only on a 90-day probationary period.)  See:  http://www.americanbar.org/content/dam/aba/migrated/2011_build/employee_benefits/1995_eeoc.authcheckdam.pdf . While we’re on the subject, as a side note, remember that the definition of “disability” is much broader now under ADAAA. Therefore, pregnancy complications, although relatively short in duration, may become a disability. See also http://www.eeoc.gov/policy/docs/902cm.html#902.2c3.

Of course, you always have to be aware of any applicable state laws.New Hampshire, for example requires leave be provided and considers pregnancy a temporary disability. As a soon-to-be mother of two, I find classifying pregnancy as a temporary disability to be completely reasonable.

What is the final answer to our question about hiring a pregnant applicant who will need extended leave before being eligible for such leave or during a crucial business timeframe? There is no one-size-fits-all answer. Much like determining how to deal with reasonable accommodation requests under ADA, you have to look at the facts as they arise and practice documenting your nondiscriminatory hiring practices.

http://openjurist.org/157/f3d/520/marshall-v-american-hospital-association -Marshall

http://openjurist.org/20/f3d/734 – Troupe

http://www.nh.gov/hrc/pregnancy/laws.html -New Hampshire law

*Special thanks to Dana Pearl for sending me in the direction of these 7^th Circuit cases and the ABA memo. Also thanks to Lorna Greer for directing me to NH state law.