Hiring and the Law – Can I Ask About Pregnancy?

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’m hiring for a job that will require extensive training to get the new hire up to speed and have gotten burned when a new hire did not disclose she was pregnant.  Can I ask the female applicants if they are pregnant, when I can’t have them go on maternity leave within their first year of hire?

Answer: No.  Interviewers should not ask an applicant if she is pregnant, how many children she has, or if she plans on having more.  These questions can violate familial-status or pregnancy discrimination laws, and can also be discriminatory based on gender if you ask these questions of female applicants, but don’t ask the men.  You’ve raised a good issue, though. And, of course, employers often need to know that new hires are going to be there once training and orientation are completed.  But, you are looking to ask the applicant the wrong question. Think about what you really need to know.

It is perfectly permissible to ask applicants neutral job-related questions.  Ask questions that address your actual concerns.  In this case, your concern is that you are hiring to fill a need that requires specialized training to get the new hire up to speed.  So, ask that question.  And don’t be afraid to preface a question with the requirement.  For example:  “This role is key to the company and we have an intensive training program planned for the successful candidate that is a significant investment for the company.  We want to make sure that the candidate we chose will be here to fulfill this role after the training period.  We expect the training period to last [insert the number of months/weeks].  Of course, we understand that sometimes new jobs don’t work out and things change [note, this gives the company an out, too], but, at this point, if you are hired, is there any reason that you would not continue to work for our company without breaks for the foreseeable future/for[a specified period of time]?”

This question covers not only expected maternity leaves, but any other reason a person may know now that he or she could be planning to be absent, such as extended surgery, or even getting married and having a long honeymoon planned.  It is possible that an applicant’s spouse is job searching as well and interviewing out of state, or the applicant could be anticipating an international adoption, requiring travel and time off at a moments notice.  While there are some other potential discrimination issues lingering within some of those reasons as well, the point is that the employer should not care why the employee might be absent—it would only be concerned about the need for the employee to be present.

By asking the question that addresses the actual issue you are concerned about, it allows you to determine whether this applicant can fulfill all the requirements of the job which, in this case, includes an expectation of continual presence at work without an extended break for the foreseeable future.  When you focus interview questions on the job related need, it helps you avoid running afoul of the discrimination laws.  The tip?  Ask the question you really want answered.

*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.