Did I use my outside voice?

published in Oklahoma Employment Law Letter | February 1, 2011

By Charlie Plumb

Could the Oklahoma Board of Education use some employment law training? If the events of the board’s January 28, 2011, meeting are any indication, the answer is a resounding yes.

Pregnant Pause

At the meeting, the board considered state superintendent Janet Barresi’s appointment of several senior personnel, including Jessica Russell as a legislative liaison. During the meeting, Barresi asked that Russell, who is pregnant and due in April, be permitted to sit while she was being questioned. That request triggered board member Herb Rozell to ask Russell whether she planned to take maternity leave. When she answered in the affirmative, Rozell reportedly remarked, “If she takes six weeks off in May, then she’s worthless to us.” Board member Tim Gilpin reportedly chimed in and stated that Rozell was simply joking. The board ultimately voted to hire Russell.

Educating the masses

This is not a hiring approach we would recommend to Oklahoma employers. Here’s why. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against applicants and employees on the basis of gender. In 1978, the Pregnancy Discrimination Act was passed. The Act specifically prohibits gender discrimination, including employment discrimination based on pregnancy, childbirth, or related medical conditions. Oklahoma’s version of Title VII — the Oklahoma Anti-Discrimination Act (OADA) — similarly makes it unlawful to discriminate against workers and applicants based on sex. In November 2010, the Oklahoma Legislature amended the OADA to prohibit employment discrimination based on “pregnancy, childbirth or related medical conditions.”

Like other laws prohibiting employment discrimination, pregnancy discrimination laws prohibit discrimination in the context of hiring, advancement, compensation, discipline, termination, and other terms and conditions of employment. Because we’re talking about the state board of education’s comments, let’s focus on the interviewing, hiring, and maternity leave aspects. Some decisionmakers may take the ill-advised step of questioning a candidate or employee about her pregnancy status because they want to know about her availability to work (e.g., upcoming leave) or the potential cost their health insurance plan would incure from an impending childbirth.

Don’t be tempted to ask those questions or make those types of comments to applicants or employees. The equal Employment Opportunity Commision (EEOC) has issued guidelines addressing pregnancy and childbirth discrimination. The guidelines specifically prohibit employers from excluding job candidates from employment or discriminating against employees based on pregnancy or a related medical condition. Guess what? The EEOC considers questions during the interview or application process about a candidate’s pregnancy or intention to take maternity leave evidence that the employer takes that information into account when making hiring and employment decisions.

On a related issue, if you offer temporary disability benefits to male employees, female employees who are temporarily disabled as a result of pregnancy or childbirth are entitled to the same treatment and benefits. Here are some “real world” examples of pregnancy discrimination in the workplace:

  • During the interview process for flight attendants, an airline asked female applicants about their pregnancy, childbearing, and childcare plans.
  • A university’s preemployment health examination included undisclosed pregnancy testing.
  • A restaurant had a rule stating that pregnant waitresses weren’t premitted to work after their fifth month of pregnancy.

Lessons learning

Despite Rozell’s comments you may think the board is out of the woods. Don’t be so sure. As we all know, comments made to employees may have consequences down the road. An employee who is later treated adversely or feels she has been treated unfairly may point to a statement in the interview process as proof that the employer has an antifemale or antipregnancy approach to the workplace. Fortunately, there are things you can do to avoid falling into that trap:

  • Make hiring and employment decisions that are neutral regarding employees’ pregnancy or plans to have children.
  • It’s fine to discuss an employee’s pregnancy with her when she raises the issue, but your questioning should be limited. With the exception of facilitating, necessary leave or treatment, don’t quiz employees.
  • Treat pregnancy and related childbirth issues in the same fashion that you treat temporary medical conditions for other employees.