Hiring and the Law —Withdrawing a Job Offer

Devora L. Lindeman, Esq., Partner at Greenwald Doherty LLP, is providing us with insight and information regarding the hiring process. Ms. Lindeman is a management-side employment lawyer and has exclusively represented managers and companies in federal and state agencies and courts with regard to their labor and employment needs for many years.

Questions addressed to Ms. Lindeman may be addressed in this column.

Hiring and the Law
By Devora L. Lindeman, Esq.*

Question:  I hired an applicant for a special product launch who just told me she’s pregnant and her child is due right at the start of the key weeks of the product launch.  Can I withdraw the job offer?

Answer:  As with most things regarding employment law – maybe.  The answer is not so black and white.  On the one hand, employers can certainly require employees to be there for the project for which they were hired.  On the other, employers cannot take any actions against employees (like rescind job offers) because of an employee’s or applicant’s pregnancy.

U.S. federal law considers pregnancy (like race, religion, national origin, age etc.), to be a “protected category” which cannot be the basis for an employment decision.  Many U.S. states, and even some localities, have their own laws that prohibit employers from making decisions because an employee or applicant is pregnant.

As is the case with qualified employees or applicants who are disabled, the law also requires employers to provide reasonable accommodations to employees who are pregnant to allow them to do their job.  And such accommodations could include the provision of authorized time to be absent.

In this case, however, it appears that the employee’s absence would be right during the key time for which she was hired.  Thus, it may not be her pregnancy that is the problem–it seems to be her absence.  You need to first consider whether you would have the same reaction if the applicant told you she was going to be absent for a non-pregnancy related reason.  For example, if she told you after being hired that she was getting married and had tickets and hotel reservations for a 4-week honeymoon; or that it was her parents’ 50^th anniversary and they had already bought cruise tickets for all their children during that time; or that her son was in a baseball tournament, and the key games were out of town during those weeks and she was planning on being there for her son.

Even if each of these situations would have you as angry and frustrated as learning that your selected applicant was due to give birth during your product launch, there’s still another step that it likely would be prudent for you to take.  The reason for this is that not only can an employment decision not actually be due to the fact that an employee/applicant is pregnant, but it also must not appear to be due to the pregnancy.  Thus, any action taken close in time to finding out an applicant is pregnant will look like it was due to the pregnancy–even if it was not.

Therefore, it is advisable to take steps to see whether it is reasonable to provide an accommodation in this situation.  For example, are the key actions really being done during the time the employee is due to deliver, or can she set things up ahead of time? Does she need to physically be there, or can actions be done remotely? Is she willing to work remotely while on maternity leave?  How much leave is she seeking? How long is she planning on working?  How likely is it that your launch will actually take place during the targeted dates?

It may be that after you gather all the information you determine that there simply is no reasonable accommodation that can be provided and that you need someone on the ground, 12 hours a day, up until and during the launch.  However, if you take the time to ask the questions and have a conversation with your applicant (and if you then document everything done), you will be in a better position to demonstrate that the decision to rescind the offer had nothing to do with the fact that she was pregnant.

It also may make a difference whether the applicant gave up anything (such as another job offer), or incurred any monetary obligations (such as moved from a different city; rented an apartment etc.) in order to take this job.  The state laws vary on what your company’s obligations may be when an applicant takes such actions in reliance on your job offer.

*Ms. Lindeman is a Partner at Greenwald Doherty LLP, a law firm that exclusively represents businesses in all aspects of labor and employment law.  These columns are intended to be general information regarding the topic discussed and are not to be considered legal advice regarding a specific situation. Contact a management-side employment attorney familiar with the law of your jurisdiction for specific advice.  Ms. Lindeman is admitted to practice law in NY and NJ and may be contacted at DL@greenwaldllp.com.  She is under no obligation to respond to reader inquiries personally, but may answer general employment law questions through this column.

© 2011 Greenwald Doherty.  May not be reprinted without permission.