Question:

I recently hired a young woman to work as a cashier at my retail outlet. She has only been on the job for two months and has now requested time off for maternity leave. I am sure that she knew she was pregnant when she accepted the job and I feel that she misled me by not disclosing her pregnancy. Can I terminate her for her deception?

Answer:

No. A pregnant applicant is under no obligation to disclose her pregnancy to a prospective employer. Moreover, it would be a violation of state and federal law for you to consider pregnancy as a factor in determining whether or not to hire an applicant. The California Fair Employment Housing Act (FEHA) prohibits discrimination based on pregnancy, childbirth, or related medical conditions during the hiring process. In addition, FEHA requires employers to grant pregnant employees maternity leave of up to four months during the time they are disabled due to pregnancy, childbirth, or related medical conditions. This requirement applies regardless of the length of time that the employee has worked for the employer. The four months of leave may be taken either consecutively, intermittently, or on a reduced work schedule.

In addition to the obligation to provide leave, employers in California may be required to transfer employees who are temporarily disabled by pregnancy to less strenuous or less hazardous positions. Employers that have a policy, practice, or collective bargaining agreement with respect to the transfer of temporarily disabled employees to less strenuous or less hazardous positions for disabilities other than pregnancy may not refuse to transfer pregnant employees at their request. Employers without such policies may not refuse transfer requests that are made upon the advice of the employee’s physician, and where such a transfer can be reasonably accommodated.

Pregnancy discrimination claims are on the rise. Almost 5,000 pregnancy discrimination claims were filed with the United States Equal Employment Opportunity Commission (EEOC) during the 2006 fiscal year. This is an increase of 23% since 1997, making pregnancy discrimination one of the fastest growing workplace bias complaints. According to the EEOC, of the complaints filed during the 2006 fiscal year, approximately, 27% resulted in a favorable outcome for the woman who filed the complaint. The EEOC recovered $10.4 million dollars on behalf of pregnant women during the 2006 fiscal year. This figure does not include awards obtained through private litigation. For example, in 2006, Verizon agreed to pay $48.9 million dollars to settle charges that two of its predecessor companies engaged in pregnancy discrimination. This monetary settlement covered more than 12,000 current and former employees in 13 states. In January of this year, the Philadelphia-based company Mothers Work paid $375,000 to settle a lawsuit alleging that it had refused to hire pregnant applicants for positions in one of its Florida retail outlets.

Given the prevalence of these types of claims and the seriousness of the consequences for pregnancy-based discrimination, employers are well advised to familiarize themselves with the rules regarding pregnancy leave and the rights of pregnant employees.
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