Human Resource Blog

Can an employer ask an employee if she is pregnant?

What are the Federal laws governing the inquiry of “Asking an employee if she is pregnant or not? Is this a question that could get a company in legal trouble?

No, this is a question that any employer should avoid. Because only women get pregnant, employment discrimination based on pregnancy is illegal sex discrimination under Title VII of the Civil Rights Act. Many states have a similar law that prohibits asking an employee if she is pregnant.

Obviously, no employer should ever ask a job applicant if she is pregnant or plans on becoming pregnant. This is almost always illegal discrimination — there is just no reason that the employer needs to know this. By the same token, an employer should be very cautious about asking a current employee if she is pregnant. It will be illegal to consider pregnancy a factor in hiring, training, promotions, salary, benefits, working conditons, etc. It is unclear why the employer would need this information, except to commit illegal discrimination.

Many pregnant women are entitled to leave under FMLA, the federal Family and Medical Leave Act. It is illegal to consider past or future use of FMLA as a factor in evaluations, promotions, salary increases or any other employment decision.

Pregnancy is not a disability, but the ADA or Amerians with Disabilities Act prohibits employment discrimination based on a perceived disability. So, for example, an employer who refused to allow a pregnant woman to lift heavy weights or to work overtime, would be committing illegal discrimination.

Employers often have the workers best interest at heart, but should avoid being overly paternalistic with pregnant employees, or those they suspect are pregnant. One factory in the northeast recently paid over $4 million to settle a lawsuit. Their *crime*? They required every pregnant woman to provide a doctors release to work, from the start of the pregnancy.