For a variety of reasons, women often apply for jobs during their pregnancy. Maybe they were victims of pregnancy discrimination at a prior job. Maybe they are looking for a stable, better-paying job to support their family. Whatever the reason, women have the right to interview for jobs during pregnancy, and it is illegal for employers to refuse to hire an employee because she’s pregnant.
This experience can be nerve-wracking. Many people assume employers won’t hire pregnant employees. In addition, remote interviews are now normal, which creates a whole new set of issues relating to disclosing your pregnancy. Here’s what you need to know.
Take a Deep Breath & Know that Pregnancy Discrimination Is Illegal
First, know that pregnancy discrimination is illegal. That means that employers violate the Pregnancy Discrimination Act and other laws if they refuse to hire you because of your pregnancy.
Second, be optimistic but vigilant. If an employer asks about your reproductive plans, gently deflect the comment and immediately write down the question you were asked and your response. These are called “contemporaneous notes,” and they’re good evidence if you believe you were wrongfully discriminated against in your job search.
If you are asked about your reproductive plans, keep an eye out on who is hired for positions by looking on company websites and LinkedIn. Save copies of profiles for people who were hired over you. If they are objectively less qualified than you, you may be able to prove pregnancy discrimination in the hiring process. A pregnancy discrimination lawyer can help analyze these claims.
Preventing Pregnancy Discrimination After You Get the Job
In general, we recommend sharing the news sooner rather than later, with a few big caveats:
- Don’t disclose until you have a formal job offer in writing
- If you have a work milestone, like a 90-day review, it may be better to wait and get a good review before disclosing your pregnancy (rather than allowing them to paper over their discrimination by saying you are doing poorly)
You must share your intention to take leave under the Pregnancy Disability Leave Law or CFRA/FMLA at least 30 days before you plan to take leave, if feasible. (If there’s an emergency, that’s fine. You don’t need to be psychic.)
This was never an issue before remote work became the norm, as most people are visibly pregnant well before they intend to take leave. Now, though, we hear from employees who have not disclosed their pregnancies well into their second trimester—and sometimes third trimester. This is legally allowed. Just keep in mind that employers may resent employees who sit on important information like a long-planned leave—so if you are trying to pave the way to a long future at the company, it may be best to be more proactive.
What Leave Rights Do I Have if I Start a New Job During My Pregnancy?
Many employees are afraid of pregnancy discrimination if they take leave shortly after taking a new job.
If you live or work in California, you may be entitled to leave under the Pregnancy Disability Leave Law (PDLL), the California Family Rights Act (CFRA), and the Family Medical Leave Act (FMLA).
Unfortunately, if you are a new employee, you are not eligible for either the CFRA or FMLA when you give birth. Both laws require you to have worked for 1 year and 1,250 hours in order to qualify.
Fortunately, you are eligible for up to four months of Pregnancy Disability Leave, as needed per your doctor’s certification, no matter how long you have worked for the employer. Most doctors certify women as disabled for 4 weeks prior to their estimated due date and at least 6 weeks after their estimated due date. This leave is partially paid through the State EDD assuming you had SDI deductions from your paycheck in the 5 to 18 month period before your leave. You also may be entitled to more than four months’ leave if your doctor says you need it for a pregnancy-related disability.
If you live or work in New York, you are eligible for job-protected Paid Family Leave (PFL) if you have worked for 26 consecutive week and regularly work more than 20 hours a week. You also may be entitled to leave as a reasonable accommodation under the New York City Human Rights Law or the New York State Human Rights Law, both of which require accommodations for disabilities, including pregnancy-related disabilities.
Both Pregnancy Disability Leave in California and Paid Family Leave in New York are job-protected, meaning you cannot be fired or retaliated against for taking leave. If you are, it may be illegal retaliation and pregnancy discrimination.
Talk to an Experienced Pregnancy Discrimination Lawyer
Pregnancy discrimination is rampant. Data shows it significantly contributes to economic inequality that can persist for the rest of your career. We are one of the only law firms in the country with a highly specialized, expert team that focuses on pregnancy and family status discrimination cases. We know how stressful it can be to navigate complicated leave and accommodation laws while you’re pregnant or taking care of an infant or young child. That’s why we’re so passionate about what we do.
If you believe you’ve been illegally discriminated against or denied leave, we are here for you. Contact us today through our website or give us a call at (213) 214-3757 to find out how we may be able to help.