Interviewing While Pregnant: Your Legal Rights in California

Posted By V. James DeSimone Law || 12-November-2019

As a woman in the workplace, you have the right to be free from any kind of discriminatory behavior based on pregnancy, related medical issues, or childbirth. The 1978 Pregnancy Discrimination Act is a federal law that protects women from being fired or discriminated against for any of the above-mentioned reasons. Additionally, Title VII of the Civil Rights Act of 1964 also prohibits any type of employment discrimination or harassment based on race, color, religion, national origin or sex. Finally, the American with Disabilities Act prohibits any discrimination of a person based on their physical disabilities, which could include, pregnancy.

However, in many cases, a woman may not already have a position with a company and is in the process of interviewing for employment. In these cases, a woman has the right to certain protections under the law regarding her pregnancy and interviewing for prospective jobs with employers.

Disclosure of Pregnancy Under California Law

In many cases, a pregnancy is not yet visibly obvious. An applicant for employment has no legal responsibility or obligation to disclose her pregnancy. Additionally, if their pregnancy is obvious, the woman has no obligation to discuss her pregnancy. However, in many cases, an applicant would want to be seen as an honest team player and dependable and hiding a pregnancy could create an alternative impression. However, that said, the law in California is that a pregnant woman has no legal obligation to disclose that she either is pregnant or plans to get pregnant at any time with an employer. If an employer retaliates against an employee for keeping her pregnancy confidential through an adverse employment action, the employee could have a right to take action under California’s Fair Employment & Housing Act.

Employer Questions – The California Fair Employment & Housing Act (“FEHA”) prohibits any employer from discriminating against any employee, or potential employee based on sex. According to the definition, sex is defined to include pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth, and breastfeeding.  Essentially, any discrimination based on pregnancy is sex discrimination. Some of the types of employer questions that are illegal to ask are the following:

  • Are you pregnant?
  • Do you plan on getting pregnant?
  • Do you have any children? If so, how many and what are their ages?
  • What is your marital status?
  • Do you have childcare arrangements in place?
  • Are you currently taking any form of birth control or fertility treatment?
  • Do you have any plans regarding your employment if you get pregnant?
  • Does your spouse work? What does your spouse do for a living?

These types of questions can be considered illegal under both federal and state law, and an employer may face a discrimination lawsuit if they ask these questions.

Refusal to Hire – If you were not hired for a position due to the fact that you are pregnant, it is a basis for an EEOC or FEHA claim, as well as a violation of other federal and state laws. A company is not legally allowed to refuse to hire someone based on the fact that they are pregnant, may become pregnant, or just gave birth.

Facing Illegal Interview Questions – Some employers may not know the law or know the law and simply want to know the answer to an illegal question. If you are applying for a job in the State of California and are asked an illegal question by a prospective employer with respect to your pregnancy, or if you are pregnant, you have several choices.

You do have the choice to answer the question honestly and directly if you choose. This is your legal right; however, it is not your legal responsibility or obligation. If you truly want to work for the employer you are interviewing with, and feel that disclosing this information will in no way harm your chances of being offered the job, the choice is yours to make regarding how much or little you choose to disclose with respect to your pregnancy.

You have the choice to ask the relevance of the question to the position. While this may seem like an uncomfortable question to ask, the employer is officially asking an illegal question to you and you should have the right to put them on notice that you understand the illegality of the question. If they rescind the question, you then have the right to answer it, or proceed with the interview. You also have the choice to end the interview without answering further questions.

Finally, you can simply state that you are not comfortable answering the question related to the possibility of your pregnancy or future pregnancy. This should be the end of the matter, however, if the employer continues to pursue this line of questioning you should know that you still have no legal obligation to answer and they are violating both federal and state law.

What to Do After the Interview

If you were offered the job, you can accept and end the matter. However, if you were not offered the job, and you believe it has to do with the fact that you either did not answer the question or answered the question honestly that you were, in fact, pregnant, you may have the right to file a discrimination lawsuit against the employer.

Some employers erroneously think that they may make a hiring decision based on pregnancy because it may lead to increased parental leave or require modifications regarding the job prior to employment, all costing the employer time and money. However, if you believe you were discriminated against and not offered a job due to your pregnancy, you may first file a charge of discrimination with the EEOC or DFEH (Department of Fair Employment & Housing). You may also file a lawsuit in California under the state laws that prohibit discrimination based on sex or disability. Finally, you may file a federal lawsuit for discrimination.  However, it is very difficult to prosecute these types of cases without an Attorney.

Contact V. James DeSimone Law

In many cases, hiring a lawyer to send a demand letter to the company regarding the matter with an offer to settle with you can be advantageous. While you will not be offered employment with the company, you may be able to seek compensation for their illegal actions and prevent them from discriminating against other pregnant women in the future. And if the employer refuses to provide a fair settlement, the Attorneys at V. James DeSimone Law are in the upper echelon of trial lawyers in the State of California, having achieved numerous jury verdicts and recognized as one of the Top Employment Lawyers in California and the United States year after year.  Contact V. James DeSimone Law at 310-693-5561 and visit with one of our experienced attorneys today regarding your legal rights if you were discriminated against due to pregnancy in an interview for employment.