Employer pregnancy testing is usually illegal when an employer uses it to screen applicants, make hiring decisions, deny work, discipline an employee, or treat someone differently because of pregnancy. In California, pregnancy discrimination can violate state and federal employment laws.
Some medical testing may be lawful in narrow circumstances when it is job-related, consistent with business necessity, and not used to discriminate. However, an employer should not require a pregnancy test simply because an applicant or employee is a woman, may become pregnant, works in a physically demanding role, or could need leave in the future.
Can an Employer Require a Pregnancy Test?
In most ordinary hiring or employment situations, an employer should not require a pregnancy test. Pregnancy is a protected condition under anti-discrimination laws, and testing for pregnancy can suggest the employer wants to use that information in an employment decision.
California’s Fair Employment and Housing Act prohibits discrimination based on sex, pregnancy, childbirth, related medical conditions, reproductive health decisionmaking, disability, medical condition, and other protected traits. Government Code Section 12940 also prohibits certain non-job-related inquiries that express a limitation, specification, or discrimination based on protected characteristics.
Federal law also prohibits pregnancy discrimination. The EEOC explains that employers may not treat workers differently or less favorably because of pregnancy, childbirth, or related medical conditions.
Pregnancy Testing During Hiring
Pregnancy testing during hiring can create serious legal risk. An employer cannot reject an applicant because the applicant is pregnant, may become pregnant, or may need pregnancy-related leave.
The EEOC states that asking about pregnancy can serve as evidence of discrimination when an employer later makes an unfavorable job decision. Questions about pregnancy, plans to have children, fertility treatment, or childcare can also suggest discriminatory intent when they relate to hiring, promotion, assignment, or termination decisions.
Instead, employers should focus on whether the applicant can perform the essential job duties. If a job requires lifting, standing, travel, or exposure to workplace hazards, the employer should ask the same job-related questions of all applicants and avoid singling out pregnancy.
Medical Exams and Privacy Issues
Some employers use pre-employment medical exams after making a conditional job offer. Even then, medical inquiries must follow strict rules. An employer should not use a medical exam to screen out pregnant applicants unless the decision is lawful, job-related, and consistent with business necessity.
Pregnancy information is sensitive medical information. Therefore, employers should limit access to pregnancy-related medical records and avoid unnecessary disclosure to managers, coworkers, or third parties.
In many cases, a pregnancy test does not tell the employer whether the person can perform the job. A pregnant employee may still be fully able to work. If a limitation exists, the employer should evaluate the actual limitation and possible accommodation rather than assume the employee cannot perform the job.
Pregnancy Discrimination and Reasonable Accommodation
California law protects employees from discrimination based on pregnancy, childbirth, and related medical conditions. It also requires certain pregnancy-related accommodations when the law applies.
The California Civil Rights Department explains that pregnancy disability leave may apply when an employee is disabled by pregnancy, childbirth, or a related medical condition. The agency also provides information about pregnancy disability leave and bonding leave under California law.
Reasonable accommodations may include modified duties, schedule changes, lifting restrictions, more frequent breaks, seating, temporary transfer, or leave. In addition, the federal Pregnant Workers Fairness Act requires covered employers to provide reasonable accommodation for known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation creates an undue hardship. The EEOC provides guidance on the Pregnant Workers Fairness Act.
Retaliation After Refusing or Reporting Pregnancy Testing
An employer may not retaliate against an employee or applicant for objecting to discriminatory pregnancy testing, reporting pregnancy discrimination, requesting accommodation, or asserting protected rights.
Retaliation may include:
- Refusing to hire
- Firing or demoting an employee
- Reducing hours
- Changing schedules unfairly
- Denying promotion
- Harassing the employee
- Giving false performance write-ups
- Pressuring the employee to resign
Timing often matters. For example, a termination shortly after pregnancy testing, a pregnancy disclosure, or an accommodation request may support a closer legal review. Still, the strength of a claim depends on documents, witness statements, employer explanations, and the full timeline.
What Evidence May Help?
Pregnancy discrimination cases often depend on written records. A worker or applicant may need to show the employer requested pregnancy information, used it in a decision, or treated the person differently after learning about pregnancy.
Helpful evidence may include:
- Job application materials
- Pregnancy test request forms
- Emails or texts from HR or supervisors
- Interview notes or messages
- Medical exam paperwork
- Conditional offer letters
- Termination or rejection notices
- Accommodation requests
- Schedule changes
- Witness statements
- Employee handbook policies
For example, a message saying an applicant cannot start “because of the pregnancy” can matter. So can a pattern showing the employer only required pregnancy testing for women or only changed working conditions after learning about pregnancy.
FAQs About Employer Pregnancy Testing
Can an employer ask if an applicant is pregnant?
An employer should not ask pregnancy-related questions during hiring. These questions can support a discrimination claim if the employer later rejects the applicant or treats the applicant unfavorably.
Can an employer require a pregnancy test before hiring?
Usually, no. A pregnancy test before hiring can violate anti-discrimination laws if the employer uses it to screen applicants or make employment decisions based on pregnancy.
Can an employer remove a pregnant employee from a job for safety reasons?
An employer generally should not remove a pregnant employee based on stereotypes or assumptions. The employer should evaluate actual job duties, medical limitations, and reasonable accommodations.
Can an employee sue for pregnancy discrimination?
Yes, when the facts show the employer discriminated, retaliated, denied protected leave, refused reasonable accommodation, or used pregnancy information unlawfully in an employment decision.
Legal Help With Employer Pregnancy Testing
Employer pregnancy testing can raise serious issues involving discrimination, medical privacy, hiring, retaliation, and workplace accommodation. The strongest claim often depends on why the test was requested, who received the results, what decision followed, and whether the employer treated pregnancy differently from other medical conditions.
Her Lawyer, A Professional Law Corporation, assists with California employment matters involving pregnancy discrimination, retaliation, medical leave, and workplace rights. Contact Her Lawyer to request a confidential consultation and discuss possible next steps.