Pregnancy and Discrimination

Two ladies were selected as Accounts Manager in an organisation which was consulting me on various HR matters including recruitment of managers. The organisation wanted to appoint one of them. The most preferred candidate had recently discovered that she was pregnant. She truthfully informed so to the doctor during her pre-employment medical test. The doctor recorded it in his report. She was medically fit to perform the job.


When the report reached the Chief Manager of the organisation he declined to appoint her. ‘She will go away in six or seven months’ he said, ‘I know we will have to repeat this selection process then again, because she will not come back for another six to eight months.’ I protested saying that one cannot reject a candidate because she is pregnant, but I also thought that there was some merit in his statement. Purely business decision. I was very disappointed with my failure to articulate well my thoughts, so this event remained etched in my memory.

Last year I was attending a training program last year at ILO’s Industrial Training Centre in Turin, Italy when this case and issue somehow came up in the discussion of the participants. A large number of them were ladies. They were unanimous that there was nothing wrong in the decision of the manager of appointing another candidate instead of employing a pregnant lady. ‘Would it not be discrimination?’ I asked, they said ‘No.’

The Washington Supreme Court has decided the issue now. In the case Hegwine v. Longview Fibre Company, the Washington Supreme Court held that “pregnancy-related employment discrimination claims are matters of sex discrimination.” Employers may not treat pregnancy as a disability to avoid providing accommodations for any temporary inability to work caused by pregnancy or a pregnancy-related condition. Further, the Court confirmed that inquiring as to a prospective employee’s pregnancy status constitutes unlawful sex discrimination, unless the inquiry is based on a valid bona fide occupational qualification.

To establish a business necessity defense an employer must prove that the challenged employment practice utilized significantly correlates with the fundamental requirements of job performance.

To establish a bona fide occupational qualification, an employer must show that excluding pregnant women was essential to the purposes of the position or that all or substantially all pregnant women would be unable to efficiently perform the duties of the position, such that hiring them would undermine the company’s operations.

So that settles the matter. No discrimination against pregnant women in hiring.

Vivek

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