Hiring Best Practices: 5 DOs and DON’Ts When a Job Applicant Announces a Pregnancy

Want a road map for how not to react to a successful job applicant who announces her pregnancy immediately after receiving an offer letter? Look at the reaction of one prospective employer in Florida who recently settled a legal claim on that issue. EEOC v. Brown & Brown of Florida, Inc., MDFL, No. 6:16-cv-1326-Orl-37DCI, Consent Decree signed May 3, 2017.

Here’s what happened:

• In early 2015, Nicole Purcell applied for an entry-level position with the brokerage firm of Brown & Brown in Daytona, Florida.
• Purcell successfully made it through multiple rounds of interviews.
• The company made Purcell an offer of employment.
• Upon receiving the offer, Purcell called the company’s Employee Services Coordinator to accept and asked about maternity benefits, announcing that she was pregnant.
• Within 30 minutes of the call, the coordinator sent an email to Purcell, stating that the company was rescinding the job offer, because the company needed somebody in the position “long term.”
• Purcell filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).
• In July of 2016, the EEOC filed a federal lawsuit on her behalf.
• The parties recently resolved their differences by entering into a two-year consent decree, with the company agreeing to pay to Purcell $100,000 in damages.

Besides a payment term, the consent decree includes provisions requiring Brown & Brown to

• take affirmative steps to avoid pregnancy discrimination in the future;
• create and adopt a pregnancy discrimination policy (to be submitted for approval to the EEOC);
• distribute copies of the policy to every manager, employee, and applicant;
• provide two hours of in-person training on gender discrimination, including pregnancy discrimination, to every manager involved in the hiring process;
• retain, at the company’s cost, a “subject matter expert” (to be agreed upon by the EEOC) on sex discrimination who will conduct the in-person training sessions;
• provide to non-managers one hour of video or webinar training on the same topic(s);
• make yearly reports to the EEOC for two years regarding further complaints of pregnancy discrimination, if any;
• post a notice of the consent decree at the facility; and
• retain all documents and data related to compliance with the consent decree.

Key Takeaways

Had the company engaged in an interactive conversation with Purcell regarding any limitations she might have developed related to her pregnancy, and whether any potential limitations existed affecting her ability to do her job that could be accommodated, it is possible that much that followed could have been avoided.

Here are some DOs-and- DON’Ts that might be helpful for employers faced with a similar situation.

1. Don’t assume that a pregnant employee is unable to do a job or will be absent for a lengthy period.
2. Document discussions with applicants who raise the issue of pregnancy, to assure that any issues raised are appropriately addressed.
3. Ask for (and document) specifics of any accommodation or job modification requested, to assure that all issues are addressed.
4. Assure compliance with federal and state laws regarding pregnancy leaves.
5. Remember that post-partum issues also require compliance with federal and state laws.