The employer looks over the application on his desk. The applicant has the right educational requirements; her references are impressive; she has experience which would greatly benefit her in the position. She looks like a good prospect. The employer buzzes his secretary and requests that the applicant be shown to his office for an interview. As the applicant enters the room he rises to meet her. Half way out of his chair he stops. Printed on the front of the woman's shirt are the letters B-A-B-Y with an arrow pointing down to the slight bulge at the woman's stomach. Politely introducing himself, the employer tells the woman that there are no positions available for her at this time. He ushers her out the door, promising to call her if something should open up for which she is qualified. Is this discrimination? The answer is a qualified yes. In the past decade, the courts have been active in the area of gender-based discrimination. Using the protections afforded by the Constitution, Title VII of the Civil Rights Act of 1964 and other statutes, the courts have increased the number of actions considered discriminatory while limiting the acceptable reasons for not hiring women. In this context, the courts have occasionally reviewed allegations of pregnancy discrimination. However, the area has proved more troublesome to the courts than non-pregnancy discrimination because pregnant women who work have traditionally been regarded as endangering their lives and the lives of their babies. Further, the uniqueness of pregnancy causes problems for the courts; pregnancy only affects women; it is a disability without being an illness; it has an aspect of voluntariness that other disabilities do not. In some cases, the charges have been that women were fired or lost benefits because they became pregnant. In others, women claimed they were not hired solely because they were women. Only a few cases have been brought in which a woman claimed she was not hired because she was pregnant. As more and more women choose to have both a career and a family, it seems probable that "failure to hire due to pregnancy" cases will become common. This note will explore the rights of both the potential employer and the pregnant applicant. Initially, the prohibitions against discrimination and the defenses available to the employer will be examined. Next, the cases involving pregnancy discrimination will be reviewed in depth. Although none of these cases involve the hiring of pregnant women, the courts' attitudes toward pregnancy can be determined. Finally, the holdings from these cases will be compared to holdings from hiring discrimination cases to see if some guidelines can be developed for the employer who is faced with a pregnant applicant.
April L. Dowler,
Pregnancy and Hiring Discrimination,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol83/iss3/9