In speaking to job applicants, interviewers need to be circumspect in what they say. There are questions that can be asked, and there are questions that can create real headaches, as well as liability. A recent case demonstrates how comments in an interview ended up in federal court litigation.

A University hired a woman to be a part-time evaluator working remotely. When a full-time faculty position became open, the part-time employee applied. She passed the initial screening as she was qualified for the position. She then had a phone interview, which ultimately became the focus of litigation.

During the interview, the employee indicated that she was pregnant and gave her due date. At that point, the interviewer changed the subject of the interview and asked how much leave the employee anticipated taking. The employee indicated one month. The interviewer responded by saying that the employee’s due date and leave interfered with the start date for the University’s program and its training period. The interviewer told her that she would not be recommended for hire because she could not perform in the position. The University subsequently hired a non-pregnant employee instead.

The employee filed discrimination charges. Two months later, a second position was advertised, and she again applied for it. Even though she had the qualifications for this position as well, the University did not even interview her. The employee thus filed additional charges alleging retaliation.

In its defense, the University claimed that the employee did not make sufficient factual allegations to meet the standard for bringing a complaint. The federal court rejected this argument. The court found that she was in a protected class as a pregnant applicant, that she was qualified for the positions, that she was not selected for the first position because of her pregnancy based on the statements of the interviewer, and that the job remained open after she was rejected. As to the retaliation claim, the court found that the employee had engaged in protected activity by filing a discrimination claim, that she was qualified for the position and was rejected, and that the rejection occurred approximately two months after the original discrimination complaint was filed. This sequence of events established a sufficient causal link to support a retaliation claim.

The moral of this story is that interviewers need to know what they can and cannot ask. The best practice is to have a review of the “rules of the road” for interviewers before the interview process to avoid issues. Clearly, telling an applicant that she will not be considered because of her due date is simply an invitation for a lawsuit, particularly when accommodations can and have been made for others in the past.