Has an employer the right to ask an applicant questions about a potential pregnancy?

Many employers ask themselves what questions they may ask to applicants. And more specifically, has an employer the right during the recruitment process to ask a female applicant whether she is pregnant or whether she wants to start a family soon?

In Belgium, the questions an employer may ask applicants during the recruitment or selection process are regulated by the collective bargaining agreement concluded in the Belgian National Labour Council, namely CBA No 38.

Besides, the Act of 10 May 2007 combating different types of discrimination applies to the applicants.

Article 11 of the CBA No 38 stipulates that 'private life of the applicant must be respected during the recruitment process. Such implies that questions about private life are only lawful when they are relevant given the nature and the conditions for carrying out the work.'

Questions about the state of pregnancy belong to the private sphere. As a consequence the employer is not allowed to ask a female applicant during the recruitment process whether she is pregnant or wants to have children.

There is one exception to this general principle: the question may be lawful when it is relevant given the nature and the conditions for carrying out the work. In other words, when the work that must be carried out could be dangerous for the mother and/or the child, the employer is allowed to ask the applicant questions about her 'state'. In case of doubt your prevention advisor or your external service for prevention and protection at work (ESPPW) can indicate whether the work to be carried out is dangerous for a pregnant woman.

The Act of 10 May 2007 on the other hand forbids - in particular - all types of discrimination on the ground of gender.  As pregnancy is undeniably linked to the sex of the applicant, it is forbidden to select another worker on the mere ground that the female worker can possibly become pregnant.

If you decide, in spite of the prohibition, to ask an applicant questions about a possible pregnancy, remind that the European jurisdiction gives the applicant the right to remain silent. So an applicant can refuse to answer a question without it being counted against her.

European jurisdiction even allows a woman to lie when asked about her possible state of pregnancy.

As a consequence the employer cannot invoke any mistake or vitiated consent when the applicant has lied, except, we recall, when the state of pregnancy can be dangerous to carry out the work. 

What risk does an employer run when he asks an applicant questions about a future pregnancy anyway?

When an applicant is discriminated during the recruitment process on the basis of his gender, he can demand a compensation up to the amount of 6 months of gross wage.

Of course, the worker who believes he is discriminated against during the recruitment process must produce proof of the discrimination, which will not be easy.

To help discriminated workers the Act of 10 May 2007 has stipulated the reversal of the burden of proof.

When a woman makes out a case for discrimination against her, it is up to the employer to prove that she has not been the victim of any discrimination during the recruitment process!

She can for instance bring forward that during the interview she had been asked questions about a possible pregnancy (however difficult to prove), but also that, in spite of her certificate or equivalent or higher experience, a male candidate was selected for the vacant position.

In general, an applicant who was not selected for a position can gain access to his recruitment files through the court.

The question whether the employer must obey the order was brought before the Court of Justice of the European Union (case C-45/10, Meister/Speech Design). The Court's answer was negative, though it clearly stated that such a refusal can be considered as prima facie evidence of the alleged discrimination. 

So the employer better makes sure not to ask any 'inconsiderate' question and not to note anything prejudicial in the recruitment files!

Author: Christine Molitor, Legal Advisor

21/04/2016