This past month I have had a number of questions from clients regarding Pregnancy, how this topic can be handled during the interview process, and what to do if an applicant mentions that they are expecting?
Before I answer this question I want review the relevant federal and state laws pertaining to pregnancy and the hiring process.
In 1978 Congress amended Title VII of the 1964 Civil Rights Act by passing the PDA, or Pregnancy Discrimination Act. This states that discrimination on the basis of
“pregnancy, childbirth, or related medical conditions” is equal to sex discrimination. Further, AND HERE IS THE IMPORTANT PART, it is against the law for an employer to differentiate between pregnancy and any other temporary physical disability in making employment decisions (hiring, promotions, assignments..etc) or in giving fringe benefits,including leave policies. From a state perspective the Arizona Civil Rights Act prohibits employment discrimination based on sex (AZ Rev. Stat. Sec. 1461et seq.). As with the federal law, discrimination based on sex generally includes maternity and pregnancy. This means that employers can provide leave for employees who are pregnant or with temporary disabilities, with or without pay, or not provide it at all, as long as all employees are treated the same in their requests for temporary disability leave. Both Federal and State Pregnancy laws apply to companies with 15 or more employees.
In the healthcare industry, it is also important to remember that it is not unusual for job applicants to complete a pre-employment drug test as part of the screening process. You can learn more about these drug testing processes on the Countrywide Testing website. If your company is based in the Washington area and you are wanting to conduct an employee drug test for your medical business, you can have drug testing Vancouver WA by health-street.net.
Now that we have refreshed our memories from a legal standpoint lets address our burning questions. It should be obvious after our brief review of the federal law that it is illegal to automatically reject a candidate out-right because of pregnancy. Equally obvious should be that Arizona’s law basically mirrors that of the federal law. So how should you handle Pregnancy in the screening and interviewing process? Since pregnancy is the equivalent of a temporary disability in the eyes of law, and you may not ask questions regarding a disability as per Title VII of the civil right act of 1964, a direct question such as “are you pregnant?” or “are you thinking of becoming pregnant?’ is a big no-no. However you are allowed to ask an applicant, “Can you perform the essential job functions with or without a reasonable accommodation?”, and “Is there any reason why you would not be able to be at work on time everyday?” Such questions may prompt an employee to volunteer that she is pregnant, then what? At this point it is critical that you inform the candidate that you appreciate the honesty and also that your practice does not discriminate in any way and that the pregnancy will not be a consideration in your hiring decision.
Finally as with any protected category of employee it is always permissible to ask a question that can be proved to be a bona fide occupational qualification. A BFOQ is a quality or an attribute that employers are allowed to consider when making decisions on the hiring and retention of employees-qualities that when considered in other contexts would constitute discrimination and thus in violation of civil rights employment law. Such qualifications must be listed in the employment offering. However proving that sex/pregnancy discrimination is a BFOQ is very narrowly interpreted by the Equal Employment Opportunity Commission so great care must go into making that decision. In certain cases where the safety of the employees’ pregnancy may be an issue due to the nature of the working environment (i.e. high radiation levels, exposure to infectious disease..etc) such a BFOQ may exist. Speak with your local employment law attorney for advice in making this determination.
Pregnancy is a topic most hiring managers will deal with at least once in their careers if not several times. Hopefully this brief review will be of help the next time you are faced with such a situation. I encourage all practice managers to take a few hours and review in depth the entire scope of the PDA (Pregnancy Discrimination Act) and share this with all of your management team, especially anyone assisting with the hiring process.
Steve Wootton, B.S.H.R., C.S.C.
Managing Partner, Owner
Desert Medical Careers, Inc.