Can I Fire a Pregnant Employee?

For business owners, making key personnel decisions is simply part of the job description.  Truthfully however, firing a worker is difficult; not only from a legal and technical standpoint, but on a personal level as well.  Nonetheless, if a worker is failing at their job and the company is suffering because of the inadequate work performance, the employee must be let go.  

Terminating a worker based on poor job performance certainly isn’t illegal.  Likewise, releasing employees because of a changing economic landscape, or simply because there is no-longer a need for their help is also well-within the confines of the law.  In-fact, almost all types of work in the U.S. are considered at-will employment contracts, meaning that the worker can quit the job at any point (without a reason) and the employer can terminate the position at any time (mostly without a reason).  Do these laws change when the worker under-scrutiny is pregnant?

The answer: no.  However, firing a pregnant worker—or any type of worker that is federally protected by anti-discrimination laws—is certainly more complicated (and more risky as well). As we’ll see in the following paragraphs, business owners that make important staffing decisions must be aware of two central concepts in employment law:

  • At-Will Employment, and
  • Anti-Discrimination Law in the U.S.

While at-will employment essentially allows owners to hire or fire anybody at any time, anti-discrimination policies ensure that the personnel decisions aren’t of discriminatory nature.  Terminating a pregnant worker is just one example of how the rules of at-will employment and discrimination law sometimes intersect and create incredibly complicated employment situations.  

So can you fire a pregnant employee? Yes; you have every right, so long as the decision isn’t based on their pregnancy.  Instead, the release must be the result of a non-pregnancy related issue, and your reasoning must be substantiated with documentation and other evidence.

At-Will Employment and Anti-Discrimination Policy: Finding the Balance

Understanding the relationship between at-will employment and U.S. discrimination law is important for businesses.  While owners certainly have control over who they employ, decisions regarding their personnel cannot violate the clauses of federal employment regulations like the Fair Labor Standards Act (FLSA) and the Pregnancy Discrimination Act (PDA).   Breach of anti-discrimination laws could—and often-times does—lead to lengthy, complicated, and expensive wrongful termination lawsuits.  

On the other hand, employment law in the U.S. grants employers near-complete control over who they employ.  In other words, at-will employment means that terminating an employee is not contingent upon contractual terms, conditions, or a predetermined period of time, and can instead occur at any-point for almost any reason.  The California Supreme Court explains:

The mere existence of an employment relationship affords no expectation, protectible by law, that employment will continue, or will end only on certain conditions

Discrimination laws might be considered an exception to at-will employment.  While employers can fire anybody at any time mostly without cause, differential treatment based on group discrimination (ie., race, religion, sex, national origin, age, disability, citizenship, pregnancy, or genetic information) is undoubtedly illegal.  

Proving that the Termination wasn’t Discriminatory

When employers decide to move forward and fire a pregnant worker, they must be prepared to gather evidence that verifies the release wasn’t pregnancy-related.  Fortunately, if the owners were good clerics and kept ample documentation, this shouldn’t be too much of an issue.  For example, if the employee consistently received poor performance reviews or written warnings, then it’s clear that the termination wasn’t discriminatory.  Of course, these reviews and warnings must be in writing.  Failing to maintain this documentation only leaves the company more vulnerable to wrongful termination claims.  

Additionally, if past non-pregnant employees were released in similar situations, this only supports the case that the termination wasn’t discriminatory.  Other current employees that are willing to testify on your behalf may also be of assistance.

The bottom line is that the employer needs to prove that the firing wasn’t of discriminatory nature.  This is a difficult situation for businesses, because they are essentially treated as guilty until they can prove their own innocence.  This is why firing a pregnant employee—even when the decision has absolutely nothing to do with their pregnancy—is risky for a business owner.

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Get Advice before Making the Decision

Intuitively, many owners think their best option may be to “bite the bullet” for a year, and then fire the employee once they are no-longer pregnant.  According to many legal professionals, this usually isn’t a good idea, as these workers are oftentimes still protected by FMLA or PDA regulations post-pregnancy.

Your best option: get an attorney’s advice.  If the employee is truly having a negative affect on your business operations, you’ll want to release them as soon as possible.  Of course, if they’ve just announced their pregnancy last week, this will look awfully suspicious—even when your reasoning is purely non-discriminatory.  

An experienced attorney will gather all of the facts (including performance documentation, historical treatment of employees, and relevant state-discrimination legislation) and advise you if and/or when you should terminate the employee.  There’s nothing illegal about firing an employee that happens to be pregnant, just be prepared to prove that your reasoning wasn’t—in any way—of discriminatory nature.  

 

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