Late one Friday afternoon, Manager Moran and CEO Smith make the difficult decision to terminate employee Jones for poor work performance. Jones has been there a few years, has no employment contract and is an at-will employee, and so can be terminated at any time for any legal reason. She hasn’t been pulling her weight, and Moran is a new manager who is just not satisfied and wants to upgrade the talent in the department. They decide to deliver the bad news to Jones on Monday.
On Monday morning, before Moran can contact Jones, Jones informs Moran that she is pregnant, has pregnancy related medical conditions for which she will need accommodations, and expects to take family leave time when her child is born.
Now what? Can the company go ahead with the plans to fire Jones? The answer is – it depends.
Under federal law, an employer may not discriminate against an employee based on her pregnancy. As such, an employer cannot terminate a woman’s employment solely due to her pregnancy, childbirth or related medical conditions.
Also under federal law, if a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, an employer must treat her the same way as the employer would treat any other employee with a temporary disability. This could include providing reasonable accommodations or temporary disability leave.
Federal law further provides that certain employees of large employers are entitled to 12 weeks of leave to care for a newborn child, and that employers cannot discriminate against an eligible employee for requesting or taking that leave.
State and local laws may also protect pregnant employees from termination or discrimination due to pregnancy, medical conditions and leave requests.
As a result, if, after hearing Jones’ news, the company proceeds to terminate her employment based on the non-discriminatory decision made the previous week, it still could potentially appear that Jones’ announcement was the reason for the termination. The timing alone could be the basis of a suit by Jones against the company.
Should Jones bring a claim, the question will be: why did the company fire Jones?
Smith, Moran, or any employer seeking to terminate a pregnant employee will need to show that the decision was based on a legal reason (such as, here, Jones’ poor performance) and not based on the employee’s pregnancy, medical condition or leave request. In order to show that poor performance was the real reason for the termination the employer is going to need to show that:
- It told the employee what was expected;
- The employee did not meet expectations:
- The employee was coached/counseled/ trained etc. and given chances to improve;
- The employee was disciplined if necessary;
- The employee still did not improve;
- A termination decision was then made.
There should be documentation that demonstrates that each of these occurred—hopefully signed by the employee and/or including emails, memos, or other messages to the employee. Lack of such documentation may not mean that the employer cannot terminate a pregnant employee; only that it may be more difficult to defend against any potential claim. A termination decision is always a business one for the company to make in light of all the facts including those that evaluate the likelihood that the employee would bring a claim and the company’s ability to defend against it.
As always, employers should consult with employment counsel for guidance regarding the risks of taking this action.