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?

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 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.


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