Suspected discrimination based on pregnancy in recruitment (TAS 543/2023, issued on 25 January 2024)

Person ‘A’ requested the Ombudsman for Equality to examine whether A had been discriminated against within the meaning of the Act on Equality between Women and Men (‘Equality Act’) in a recruitment process when the employer withdrew an offer it made to A after learning about A’s family care responsibilities. In its email, among other things, the employer had asked how many children A had, the ages of the children and whether A planned to have more children. After this, the employer withdrew the offer it had made. 

Assessment of the case

The Equality Act prohibits discrimination based on pregnancy, childbirth, parenthood and family care responsibilities. From the perspective of the Act, when assessing the appropriateness of questions asked in a job interview, what is material is that employers may not treat candidates differently based on the abovementioned grounds. In a job interview, it is forbidden to ask about the candidates’ family relations, pregnancy, plans for having children, number of children or arrangement of child care. Such questions cannot be allowed in a job interview even in situations where responding to them is voluntary. This can be deviated from in situations where the work to be performed could endanger the health of the mother or the unborn child. An employer’s questions related to pregnancy and family ties may give cause to suspect discrimination. If discrimination is suspected, the employer must be able to prove that the candidate’s pregnancy, parenthood or family care responsibilities did not affect the recruitment decision.

Based on the information received, the employer asked A about A’s family situation and expressed concerns related to organising child care and a possible future pregnancy. The employer also invoked these concerns in the email in which it withdrew its offer. There was therefore reason to suspect discrimination. In Ombudsman for Equality’s view, the employer’s true reason for not recruiting A were A’s family care obligations and the assumptions the employer made of A’s family situation. The employer did not provide any such proof based on which the Ombudsman for Equality could have deemed that the candidate’s pregnancy, parenthood or family care obligations did not affect the recruitment decision. The Ombudsman for Equality therefore considered that the employer had discriminated against A within the meaning of the Equality Act. 

The Ombudsman for Equality assisted the parties in settling the case and the parties did reach an amicable understanding in the case.

07.05.2024