In my entire career dedicated to representing employees in disputes with their employers, I have not seen so many employees terminated while pregnant as I have in the past couple of years.  This brings us the question that is the purpose of this article…can an employee be fired while pregnant?

While being pregnant does not make an employee immune to termination, an employer cannot fire an employee because they are pregnant.  Now, most employers are smart enough to refrain from explicitly stating that pregnancy is the reason for an employee’s termination.  Instead, employers often hide behind an illegitimate reason to terminate an employee, which is known in the employment law world as “pretext.”

If an employee is terminated while pregnant or during/shortly after a maternity leave of absence, chances are that the employee’s potential to succeed with a legal claim will come down to whether the employer had a legitimate business reason to terminate the employee.  The employee must focus on illustrating why the proffered reason for termination is a pretext.  Some common examples of pretext include but are not limited to the following:

• An employee has had an excellent history of performance prior to their pregnancy, only for an employer to make bogus allegations that the employee is a poor performer once the employee is pregnant and/or goes on maternity leave.
• An employer foregoes its typical progressive discipline or performance management process in a haste to terminate an employee that is pregnant or on maternity leave.
• The employer claims that the employee is “laid off” or that their position is eliminated, despite there being no legitimate reason behind the lay off/position elimination. We often see situations where an employee that is pregnant and/or on maternity leave is the only individual “laid off” on their team or within the entire company.

The above scenarios could be a used as evidence of pretext and help an employee succeed with a potential legal claim.

There are various federal laws that may protect an employee that is pregnant, which include but are not limited to: Title VII of the Civil Rights Act, the new passed Pregnant Workers Fairness Act (PWFA), the Family and Medical Leave Act (FMLA).  Many states also have laws that offer protections related to pregnant employees and maternity leave.  If you believe you have a pregnancy related employment claim, our firm would be happy to provide a free case evaluation.