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What Not to Say to a Pregnant Job Applicant

Channeling Rod Serling here.  “Imagine if you will….”  (for those readers too young to recognize the quote, check out “The Twilight Zone”).  You are responsible for hiring a new employee. During the interview process, an applicant says, “by the way, I am pregnant.”  How do you respond?   I have used this hypothetical in employment law training sessions.  The answer is always the same: “congratulations.”  And leave it at that.

This year is the 40th anniversary of the Pregnancy Discrimination Act of 1978, so you would think that by now, nearly manager would know that you cannot discriminate based on “pregnancy, childbirth, or related medical conditions . . . .”   42 U.S.C. § 2000e(k).  But, unfortunately that is not the case.  A recent decision from the federal court in New Hampshire in a lawsuit filed against the Southern University of New Hampshire’s (SNHU) College for America provides us with a teachable moment.  Fireside v. College for Am., 2018 U.S. Dist. LEXIS 31119 (D.N.H. February 27, 2018).

The court’s decision was based on the defendant’s motion to dismiss, so the facts as alleged in the complaint were assumed to be true for purposes of deciding whether the plaintiff had stated a claim upon which relief could be granted. So, that’s the way it is presented here.

In September 2015, SNHU hired Fireside to work remotely from her home in Oregon as a part-time faculty reviewer in its College for America division. A faculty reviewer evaluates student projects for competency.

In December 2015, Fireside applied for a full-time team lead position in SNHU’s Psychology Department, a job for which she was qualified. In January 2016, Fireside had a second-round telephone interview with the Director of Operations, during which they discussed the position and start date.  During this interview, Fireside told the Director she was pregnant, and of her expected delivery date.  In response, the Director asked how much time Fireside planned to take for maternity leave.  Fireside replied, “one month.”

The Director said SNHU had made exceptions to start dates in the past, but that she would not select Fireside for the position because her “due date interfered with the position start date and training period.”  The Director also told Fireside that she would inform the hiring committee Fireside was unable “to perform in the position.”  SNHU then hired someone who was not pregnant for the team lead position.

In April 2016, Fireside applied for a full-time faculty position in SNHU’s Psychology Department. While her application was pending, Fireside filed an EEOC charge related to her not being selected for the team lead job.  Two months after filing her EEOC charge, Fireside was told she was not selected for the faculty position.  She was not even interviewed.

Fireside sued for pregnancy discrimination and retaliation.  SNHU filed a motion to dismiss. The court rejected most of SNHU’s motion and let the case proceed.  The court noted that, in the First Circuit, a plaintiff does not need to even allege a prima faice case of discrimination, just allegations that, in sum, “make the claim as a whole at least plausible.”  Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 24 (1st Cir. 2014).

Here, Fireside alleged that the hiring supervisor made comments that suggested she held pregnancy in a negative light.  Moreover, the decision not to hire – or even interview – Fireside for the full-time faculty position was temporally sufficient to support her retaliation claim at the motion to dismiss stage.

So, what is the take away here?  Managers need to be reminded, some more frequently than others, that there are certain things that should not and must not be taken into consideration when making employment decisions.  As I sometimes have to tell a client (fortunately, not very often) “well, Congress knew people felt that way, and passed a law against it.”


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