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Friday, October 9, 2009

interviewer said they would hire me if I weren't pregnant

A reader writes:

I recently interviewed for a position that I was recommended for by the Director. We had worked together previously, he knows I'm a good fit and very qualified so he put my name before the hiring manager. The interview went great, everyone got along swimmingly, but then the hiring manager said something along the lines of, "Well, let's address the elephant in the room. We can't hire you and have you go out on maternity leave." The team all agreed that I would be a great fit if only I were not pregnant.

This blows my mind.

a) I was under the impression that this practice is illegal.

b) There's no way in the world that playing this card would do me a bit of good. What, are they going to hire me because I threatened them? If I say a peep, I'm toast. But then they also made a hiring decision based on me being pregnant, which is also equally as uncool.

What would you do?

Yep, it's illegal all right, under Title VII of the Civil Rights Act of 1964. The only exception to this would be if they have fewer than 15 employees, since Title VII only applies to employers with 15 or more people on staff.

And you're also right that threatening them with legal action isn't likely to endear you to them. Even if they hired you out of fear of a lawsuit, it's hard to imagine you're going to have a good working relationship with these people after that.

You asked what I would do, which is different from what you can do. You can file a complaint with the EEOC, which investigates charges of pregnancy discrimination.

But it's not what I'd do, although it's an option for you. What I'd do is this: I'd get back in touch with them and say, "Look, I've been thinking about our conversation, and I need to say this. I don't think your staff realizes that that not hiring someone because she's pregnant is actually illegal. It violates an explicit prohibition in Title VII. I'm not saying this to bully you into hiring me -- I think that ship has sailed -- but I do think it's really important that you and anyone on staff involved with hiring know about this law, so that you don't find yourself in this situation with another pregnant woman in the future. I'm not litigious and have no interest in pursuing this, but I felt I needed to say something, because I'm sure you must not realize it."

And then I would move on.

I'd handle it that way because I don't want to work somewhere that feels like I threatened them to get the job. And I don't want to get a reputation for being litigious, because unfortunately that has a way of closing some doors that I'd rather have open. Does that suck? Yes. But this situation is fraught with trade-offs, and that's the one I'd choose.

But you'd be well within your rights to pursue it legally if you wanted to.

26 comments:

J. P. said...

Obviously the original poster does not want to work for the company. However, could she pursue other opportunities, while also suing this company and getting some money from them?

LW said...

I'd like to believe the best in everyone, but that law IS there for a reason, and if it's never followed, and violations of the law are never punished ... it's not very effective, is it? So, while nicely pointing out that they are breaking the law won't burn bridges, sometimes I think a lawsuit needs to happen. Not saying that this is the case in this situation (esp. without a ton of details), but I am just getting frustrated hearing how many women are discriminated against and ... don't do anything.

Kara said...

I'm in HR. No company I've worked for would hire someone who we knew had sued a previous employer. I'm not saying that's right but that's how it is.

Lawsuits can hurt your reputation and they take an enormous amount of time and sometimes money. It's easy to say you should sue but it's her life that would be affected.

Anonymous said...

I agree that you must write this job off and move on for all of the reasons stated, but you are not even at the point of considering litigation. I would file a complaint with EEOC. If nothing else they'll learn an important lesson regardless of the outcome and companies who discriminate as blantantly as this often mediate which means you get a settlement. If mediation doesn't occur you'll get a right to sue letter at which point you have some time to consider a lawsuit. And, no money out of your pocket to file with eeoc.

Anonymous said...

If you follow aam's advice the company will keep disciminating they just won't be as obvious.

Anonymous said...

From HR point of view, they haven't offered you the job and then changed their mind when "noticing" that you were pregnant. Most likely they had been honest with you because they knew you from the past. The company has an immediate need and hiring someone who is about to take on maternity leave is not going to solve it. So I would say they just handled it clumsily by addressing your pregnancy. I know it's a very sensitive subject but given the abundancy of good candidates to choose from, you can't blame an employer for not going for the best solution and what suits their needs.

Kara said...

Why is it on her to singlehandedly end this company's discrimination, knowing it will be a emotional drain and knowing she might lose future jobs because of it? Having legal options doesn't mean you have to use them. She has to decide what decision is right for her.

Anonymous said...

kara,
Don't we all have a duty to do what we can to end illegal activities like discrimination? People who turn a blind eye only perpetuate it.

a. brown said...

Move on, but file a complaint. Silence doesn't get us anything, and people worked hard to make that kind of discrimination illegal. And future congratulations on your baby elephant!

Interviewer said...

Per AAM's advice, I would call the hiring manager, who should definitely know better. Making him aware of what they've done wrong is the point, and I would add to AAM's sample conversation that they need to call their company's attorney about this event, since it is huge exposure for them. The way they said it to your face, in front of multiple witnesses, builds a textbook case for the plaintiff. Their ignorance of the law is not a valid defense.

Depending on their response to this conversation, which should at the very least include a formal apology, you might want to end it there, or you could consult an attorney if you think they are aware of the law, and breaking it anyway.

Anonymous said...

I would file a complaint immediately and give them a good lecture. In any case, I would never consider them for future employment and spread the word. At the minimum you should get a formal apology, but I wouldn't count on it.

clobbered said...

Is this in the US - for God's sake, maternity leave in the US is pitiful, we are not talking about 2 years off here.

This is what I would have said at the time:

"I'm sorry you feel that way. I would only have taken maternity leave 12 weeks, but I would have been a great asset to your team for years and more than made up for it. Good luck with your next choice".

Anonymous said...

To the anonymous commenter who remarked that "the company has an immediate need and hiring someone who is about to take on maternity leave is not going to solve it," I want to say that's just too damn bad for them. Taking steps towards ending discrimination is costly and inconvenient sometimes, but it's the right thing to do and it's the law. If a company is so desperate that they need to be discriminatory, oppressive, and downright illegal in order to fill a position quickly they should reconsider their priorities. For example, whether the amount of money they lose by not filling that position immediately is worth a lawsuit and knowing they're being totally unethical.

It's almost like arguing that it's not fair to buildings whose managers can't take the cost of building wheelchair ramps. Again, too bad for you.

Anonymous said...

Just because the law gives you the option to file legal action doesn't mean you have a moral obligation to. There are lots of reasons she wouldn't want to. It's naive to think that filing a lawsuit doesn't affect your chances with companies in the future.

It's her choice.

RP said...

If we all did nothing then where would we be today? File the complaint. Who knows how many other people are discriminated against by this company.

Beck said...

It's easy to say that when it's not -you- who might pay the price with companies in the future.

Anonymous said...

How easy would it be for the next employer who considers hiring her to do a google search and find that she is suing someone for discrimination? Would they panic at the thought of a litigious risk,change their minds, and quietly say, "I'm sorry but you don't meet our needs right now?" AAM has offered a middle ground: a way to register a protest without ruining a career.

theolderepublicke said...

If the letter writer is not in a position to sue or file a EEOC complaint, I recommend she not AAM's advice and notify the company. Maybe those cads (I'm basing my name-calling on the letter writer's description of the facts) will do it again to someone who is in a position to sue, and they'll get what's coming to them.

Notifying the company will probably teach it only to be more subtle when it discriminates the next time around. Why help them out?

Anonymous said...

I would like to hear from HR people and some stats on how many obviously pregnant candidate they hired within last year. Just an average number.

Anonymous said...

Agreeing with the thought from the earlier posting:"Just because the law gives you the option... to legal action... doesn't mean you have a moral obligation to...." Similarly, just because there's a law re hiring pregnant candidates, no company is obligated to bend over and accomodate, especially in this economy. And it's NOT that I'm being bias, just facts.

Anonymous said...

I hope it's not the HR folks talking about a lawsuit? She can't even file a suit until she files an eeoc complaint. And, the last time I looked you can't look up EEOC complainant information.

Anonymous said...

Would you give your company a good lecture if they canned you for taking maternity leave? Same thing.

Anonymous said...

I think that the FMLA regulations have been completely ignored in this discussion. As a new hire for the company, the applicant would NOT qualify for FMLA when she gives birth. Some companies have very strict policies regarding unpaid leave. Our company does not allow more than one week a year for unpaid leave except for reasonable accommodation. They do NOT make any exceptions because they do not want to be accused of discrimination by applying the leave rules in an inconsistent manner. They terminate if the leave if leave extends beyond the one week rule.

I am not sure how this interview went. When I read the email and I think about my company, if the Director recommended the person I assume the interview is a mere formality and that a job offer would be extended at that meeting. If, knowing that they were going to make an immediate offer and knowing our unpaid time off leave rule is so strict, I would want to address this with the candidate because I wouldn’t want to terminate her right after hiring her. In this situation “We can’t hire you and have you go out on leave” is legitimate because she doesn’t qualify for the leave. They didn’t say “we can’t hire you because you’re pregnant.” If they have already made a decision and want to extend her the offer, maybe it was the hiring manager’s way of asking her about whether she expects to take leave and making their policies clear upfront. I think unless I got further clarification of the situation and what exactly was said word for word, I can’t make a determination one way or another if the interaction was illegal or immoral. I would almost wonder if the applicant didn’t have a full understanding of the situation and took information out of context.

I agree this would be a hard position to argue in court but it could be a plausible defense for the employer. I am also assuming that there was more than one interviewer in the room from the context and wording of the posting. I would wonder if the other people at the table had a different understanding of the situation than the applicant which would mean witnesses for the employer (or witnesses for the employee if the events played out as described and she decided to pursue it in court). Something to think about.

Anonymous said...

P.S. @ Anonymous... "I would like to hear from HR people and some stats on how many obviously pregnant candidate they hired within last year. Just an average number."

I am the recruiter who posted the last commment... we hired two obviously pregnant women last year with the understanding that we could only offer them a week of leave because of the FML and unpaid leave policies. Of course, they were able to work from home like other employees so they did have *some* flexability. They were also able to take bonding time when they became eligibile.

New mom looking for work said...

For what its worth...I had a coworker who was 6 months pregnant with twins when she got a job offer for $20K more than she was making with our company.

That said...when I was 6 months pregnant and got laid off...I didn't even bother looking for work. I figured that even if no one *said* anything about my expanding waistline, it was unlikely that I'd get hired in this economy.

Hire Staff said...

Sorry to hear that..