Please note this blog post is written for employers, although we understand it may be of interest to employees as well. At this time, our firm only represents business owners and employers. If you need assistance with a legal matter as an employee, please consult a firm that represents employees.
As a business owner or officer, you know that your company’s health is your primary duty and your fiduciary duty to any management board (e.g., board of directors, etc.) and the other owners such as shareholders. However, rarely is life dealt with in absolutes.
Regarding employees, your duty to manage a healthy and profitable business is tempered by several federal anti-discrimination laws. At the same time, the at-will employment doctrine enhances your duties to the business.
“Business owners and managers are constantly faced with unique, challenging situations involving their employees. They need to have a clear understanding of the law but also make wise decisions about how the law applies.”
Kristi Benson, Business and Labor Attorney
Here we will discuss the intersection of federal anti-discrimination laws and an employer’s at-will employment rights when it comes to firing a pregnant employee. We will also discuss how to minimize risk when you decide to fire someone who is pregnant. However, you should consult with an employer employment lawyer to discuss your specific situation.
Understanding At-Will Employment
At its most basic level, at-will employment means that you can fire anyone at any time for any reason—as long as that reason is not discriminatory in any way. To this end, federal law gives employers almost total control on how to hire, fire, and manage at-will employees. To expand on this point, a court in California provided an insightful description of at-will employment as meaning that “the mere existence of an employment relationship affords no expectation, protectable by law, that employment will continue, or will end only on certain conditions.”
In addition, because there is no employment agreement in at-will employment, you do not need to meet certain conditions or wait a certain amount of time to terminate an employee justly. Accordingly, as a manager or business owner, you have broad powers to staff your business with the people you want. This is true as long as your reason for terminating someone is not based on their inclusion in a protected class like pregnant women. As such, at-will employment intersects with anti-discrimination laws to achieve a balance between broad discretion in staffing and protecting certain persons from discrimination.
Understanding Anti-Discrimination Laws
Anti-discrimination laws are a good and just thing. The United States has promulgated several federal laws protecting various individuals from discrimination. Some of these protections have been around for a relatively long time, and some are fairly recent. Nevertheless, it is illegal to terminate an employee for a discriminatory reason. Those who belong to a group of people traditionally subject to discrimination are said to belong to a “protected class.” A protected class is a group of people often discriminated against based, in whole or in part, on the following reasons:
- Age (40 and over);
- Race or color;
- Religion or creed;
- Ancestry or national origin;
- Sex or gender (including pregnancy, childbirth, breastfeeding, or related medical conditions);
- Sexual orientation;
- Gender identity or gender expression;
- Medical condition;
- Genetic information;
- Marital status;
- Disability (mental and physical); or
- Military or veteran status.
The primary federal laws protecting pregnant employees are the Fair Labor Standards Act (FLSA) and the Pregnancy Discrimination Act (PDA). Additionally, the Americans with Disabilities Act (ADA) also comes into play. Therefore, you can think of federal anti-discrimination laws as an exception to your powers under the at-will employment designation.
Methodology for Termination of an Employee Having a Protected Status
Unfortunately, when considering terminating a pregnant employee, you need to make the assumption that you are presumed guilty until proven innocent. In other words, proceed with the presumption that you will have to prove that the termination was not discriminatory.
Follow Company Policy and All Laws
The first and the best thing you can do when firing a pregnant woman is to follow all of the policies and procedures in your employee handbook as well as any requirements under federal law (specifically the FLSA and the PDA) and state law. Be sure to document your actions under these procedures and respect any timelines and required notice periods.
Lay the Groundwork
Presumably, the employee has a history of poor performance or has failed to meet expectations. Having performance reviews, incident reports, and reprimands on hand is critical to supporting your argument that the termination was not discriminatory. Thus, make sure to sign and file all performance reviews, reports, and reprimands—the longer and more detailed the paper trail, the better.
Identify Similarly Treated Employees
Review your personnel files for other employees who were terminated or reprimanded for the same reason you are using to terminate this employee. Any similar situations that resulted in reprimands or termination will support your non-discriminatory reasons for terminating the employee.
Everything Must Be in Writing
While not entirely correct, assume that it did not happen if it was not in writing. Taking this position will prompt you and your staff to document the employee’s performance and termination process. If matters devolve into a “He said—She said” situation, you are already in an unfavorable spot.
Avoid the Veneer of Impropriety
Try to avoid an abrupt termination by providing several opportunities to correct and improve. This may include retraining and mentoring exercises. Additionally, conduct all reviews with both the employee and their supervisor. Having a third party involved in all performance reviews adds an extra layer of protection to any attempt to mischaracterize what happened in a meeting.
Finally, act with sensitivity, confidentiality, and professionalism when handling all matters related to the employee and their potential termination. Interjecting personal opinions or using vernacular not belonging in the workplace can only lend to an alternative motive for the termination.
What Is at Stake
Your business’s health and ongoing success are at stake in at least two ways. First, if you terminate the employee in a manner that raises discrimination as a motive, then you risk a lengthy, complex, and costly lawsuit. Lawsuits disrupt business operations and harm your public image. Secondly, any misgivings about firing someone who is pregnant could percolate through your workforce and impact enthusiasm, loyalty, and retention. Each employee should feel secure and protected by you as their employer. Mishandling the termination of an employee may have a corrosive effect on your business.
We Can Help You Navigate These Waters
You need the advice of a professional when you need a definitive answer to the question, Can an employer fire a pregnant employee? BrewerLong prides itself on having real-world experience when addressing the sticky and highly volatile employment situations. Our attorneys know the anti-discrimination laws and understand their practical effect on business operations. As such, we counsel our clients regarding both the letter and the spirit of the law. Contact us today to see how we can navigate you safely through the process of firing a pregnant employee.
This blog post is provided on an “as is” and “as available” basis as of the date of publication. We disclaim any duty to update or correct any information contained in this blog post, including errors, even if we are notified about them. To the fullest extent permitted by law, we disclaim all representations or warranties of any kind, express or implied with respect to the information contained in this blog post, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, and timeliness. We will not be liable for damages of any kind arising from or in connection with your use of or reliance on this blog post, including, but not limited to, direct, indirect, incidental, consequential, and punitive damages. You agree to use this blog post at your own risk. Regarding your particular circumstances, we recommend that you consult your own legal counsel–hopefully BrewerLong.
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