Does my boss have the right to ask me how long am I planning to stay out of the office after I give birth and my due date is not for another 6 months?

UPDATED: May 22, 2012

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Does my boss have the right to ask me how long am I planning to stay out of the office after I give birth and my due date is not for another 6 months?

Asked on May 22, 2012 under Employment Labor Law, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

It is dangerous (for your boss) to ask, but not specifically illegal. An employer is not allowed to discriminate against a woman due to pregnancy or childbirth--so, for example, the employer cannot fire a woman, demote, or suspend her simply because she is having a child. However, employers are allowed to plan and run their businesses, so they can ask a pregnant employee about her plans, so they can decide whether to hire a temp, whether to shuffle around assignments and workloads, etc.

The reason the question is dangerous and most employment law counsel or HR Directors would advise against it--especially when it is asked so far in advance, and thus seems to be "premature"--is that if an adverse action is taken against you, it will be difficult to avoid the implication that the negative action was taken because the employer did not like that you were pregnant.

However, as said, it is not specifically illegal to ask, and if you do not suffer any adverse employment consequences that could be due to your being pregnant, there would be no cause of action or grounds for complaint.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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