Can you fire a pregnant employee?

by Evil HR Lady on March 26, 2015

I was an assistant manager at a restaurant in California. I’m pregnant and have noticed that my general manager began treating me strangely. Then they promoted an employee to be assistant manager, then another day a new person was hired as assistant manager, making 3 assistant managers! The same day the new assistant manager began working, I was dismissed from work for the rest of the day for performance issues. He removed me from my scheduled shifts, giving me less work. I even complained to the owner over the phone to ask him why I was being told to leave work.

I also gave official written notice requesting maternity leave to management And soon after they fired me!
The employee manual even states that any woman that is disabled due to pregnancy or childbirth is entitled to pregnancy disability leave (PDL) I really cannot believe what has been done to me.

Even though, this restaurant has  ‘at will ‘ employment policy it doesn’t apply to pregnant women who request maternity leave. so it was wrongful termination for him to fire me right?

Let’s clear up a little misconception. Getting pregnant doesn’t protect you from termination. Evil HR Lady’s rule of thumb is that you can fire anyone. You can fire a Pregnant, Hispanic, Lesbian, Born Again Christian, Age 45, disabled woman, even though every single one of those characteristics puts her into a protected class (in California–sexual orientation isn’t protected everywhere, but I suspect that’s just a matter of time). But, what you can’t do is fire someone BECAUSE she’s pregnant, Hispanic, blah, blah, blah. So, it’s not true that your job is safe because you requested maternity leave.

Now, are businesses wise to carefully consider terminations for all employees? Yes. While we have “at will” employment in 49 of 50 states (Montana being the one hold out), in practice, we don’t really follow “at will” employment. Most companies won’t fire you just because they can. Firing people is horrible, and most people are basically nice. So, in most cases, you see people terminated for performance, attendance problems, attitude, general behavior or a layoff for financial reasons. So, while you can fire someone because it’s Tuesday, most businesses don’t. And if that employee that you fire, simply because it’s Tuesday, falls into one of those protected classes (and really, everyone is in a protected class because we all have race and gender and national origin, but I digress), the courts are not going to believe you when you say that’s your reason.

So, let’s discuss your case. If I follow correctly, you are an assistant manager at a restaurant. Everything is fine. You get pregnant and tell the boss you are pregnant. Boss suddenly starts treating you differently, cuts your hours, hires a replacement for you and fires you after you formally request maternity leave. Correct? If the cause of the different treatment is the pregnancy, then that’s illegal. You can hire a lawyer, or you can file a complaint with the EEOC. The lawyer is more expensive, of course, but the EEOC is pretty slow.

But, there was one other thing you said–you were sent home for “performance reasons.” So, my question is, do you have performance issues? Because if you do, then the termination could be legal. Restaurants often have pretty easily measured performance goals, so it can be pretty obvious when an assistant manager is failing to meet expectations. If you were under the impression that your pregnancy protected your job, and slacked off because of it, that could mean the firing was perfectly legal.

The Supreme Court just handed down a new decision on pregnancy discrimination that essentially requires companies to provide accommodations for pregnancy if they provide accommodations for any disability. But, I don’t think you asked for accommodations and were denied.

So, it’s possible that you were fired for an illegal reason–pregnancy. But, it’s also possible you were fired for performance. If you believe your performance was great, file a complaint with the EEOC or call an attorney. If you think it was performance, well, bummer.

Congrats on the new baby! May your labor be pain-free and your baby sleep loving.

{ 15 comments… read them below or add one }

grannybunny March 26, 2015 at 3:34 pm

File for unemployment compensation, too!

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Evil HR Lady March 26, 2015 at 3:40 pm

Ooops. Yes. I should have said that. Always file for unemployment and always appeal if you’re denied.

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Peter Palme March 27, 2015 at 11:05 am

Does the employee need to proof to the court that the performance was good and did not provide the reason for the dismissal ? In Switzerland the employee needs to provide the evidence and this is a big challenge for the employee.

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Evil HR Lady March 27, 2015 at 11:15 am

The employee is required to prove she was discriminated against. However, in practice, the company has to prove that they didn’t discriminate. Both sides would be entitled to review employment records, and any materials that went into the decision.

If she sues and the only records show that she was fired for performance reasons, without documentation of what those performance issues are, then the assumption is going to be that the termination was due to the pregnancy.

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Horse tense March 27, 2015 at 1:18 pm

What do you do when your company is fabricating performance issues to disguise the real (illegal) reason they want to fire you? I am interested in learning how one should go about combatting that, since I myself don’t see many ways how.

To give the Letter Writer the benefit of the doubt, and present a hypothetical, bear with me:

Letter Writer is an excellent assistant manager. Ranks excellent in her semi – annual performance reviews. Company learns LW is pregnant. LW finds herself being assigned new tasks that she has never performed before (but she agreed to do “all other duties as assigned” when she took the job). Manager dings her on these new suddenly – essential – to – the – job chores, and uses this to decide her overall performance is unacceptable.

Suddenly, her hours are cut. Manger hires new people for the position despite claims of No Work Available for the LW. When the formal request for maternity leave happens, manager has a paper trail of “poor performance”, and denies the subsequent termination of the LW had anything to do with her being pregnant.

Some of the above is what I read in the letter, some is what I am personally observing in a seperate situation but I believe is *possibly happening* in the LW’s case.

Do you Evil HR Lady get any updates from people who went to the EEOC and were successful? Can people be awarded damages if they don’t take the company to court?

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Evil HR Lady March 27, 2015 at 1:22 pm

The EEOC process can take YEARS. YEARS and YEARS and YEARS and that is if hte EEOC gets around to it.

Lawyers can be a lot quicker, especially if the company agrees to a settlement. If it goes to court, it goes on for years.

I’ve seen what you’re describing as well. It’s illegal as well, although it becomes more difficult to prove with a good documentation trail.

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Gerald Huffman March 27, 2015 at 7:01 pm

You are spot on about the EEOC. I represented a lady in a case with very similar facts. To get the federal claim, we filed with the EEOC. It took them 3 y ears to issue a cause determination and then another 2 years in litigation to get a good settlement.

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Mark Twomey April 6, 2015 at 5:29 pm

I must say this is an unbelievable story from the poster. I understand that in different continents and countries there are different labour laws but where our company is based in Poland, the labour law is very much PRO family values and care for pregnant women.

Must say i was shocked reading this

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Jackie O. April 13, 2015 at 7:16 pm

I wish America was more pro family. Many businesses are turning to it, but we are definitely behind most countries. Women are often forced to choose between doing what is best for their family and their profession. I hope to see equality in this issue in the near future.

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Jackie O. April 13, 2015 at 6:59 pm

In regards to performance reviews, is it law the employer must present the performance review to the employees to get signed in case of a misunderstanding in a termination? I have always been given a formal report, but I wasn’t sure if it was required.

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sam September 28, 2015 at 2:32 am

How about if you are hired on, pregnant. the company is sold and new owners have management fire you after a week for being pregnant, not only verbally, but even wrote on your termination papers you are being fired by new owner ship because they don’t want to be responsible for your medical condition (high risk pregnancy )and have decided to not reinstate your employment. .even after being cleared to work from my doctors and never asking for any accommodations,but doing the same work as my co-worker,without any limitations? Law suit?

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Nikki January 22, 2016 at 9:41 pm

I was recently let go due to performance which they did document but each time I was talked to I verbally said I needed support. Some of the jobs I had to do were outside of my ability being that I am pregnant. Anytime I verbally told them I needed help or that I was falling behind for any reason I was told to “pick it up” vs. getting some kind of help with as other employees were getting. This is discrimination for being pregnant, I just noticed other employees getting their jobs supported when they cannot do them alone but I was never given that help. I just wanted to know if there is anything else I can do…they had let me go 2 weeks before I would go on maternity leave and UI will not be covering me until 2 weeks but I’ll be on SDI by then.

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Rather not say October 26, 2016 at 10:03 pm

Here’s briefly my situation.. I’m in sales, my performance is always well and I always have volume calls that I need done and it have the ability from no side track work do more than needed. Due to the elections going on right now it is extemely slow and nobody can bring in the amount they should in sales to meet their goals. Normally I would always reach my goal amount excluding this last few slow months. Can my employer fire me when he finds out that I am pregnant and use the excuse of me not doing my job nonsense since I have been doing the same as always?

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Anonymous March 18, 2017 at 3:08 pm

So this story’s update. He put me under way too much stress, I was always being threatened that I would be fired because I had a rough pregnancy and being stressed made me MUCH worse and caused me to have hospital visits because he made it a hostile environment to work in. And he made me feel bad for being pregnant. I had presented him wih hospital notes from all the days I missed at work. He even wrote me an email that I have a copy of when I requested to go to the doctor cause I was feeling that I was getting sick that I out of time off that I am now jeopardizing my job. Work still never picked up and NOBODY was able to bring in their sales quote. After the elections the holidays made sales slow. He ended up firing me in January the Friday before a Monday that I had a mandatory doctors appointment I had to go to that he denied my meeting request for. He tried to get my unemployement denied by sending them an email that he was releasing me because of all my days off that I kept taking and that my job performance was not good (meaning my sales quota- which was NOT even a requirement in the contract that I signed to work for the company) and he specified that I changed since I got pregnant! While working there I have performed all my duties that were required of me by the contract I signed to work for the company. Yet he hired somebody a few days before he fired me and had me train him. Also when he fired me, he presented me with an offer to work under the table for him from home and receive a higher commission but with no base pay. So why would he want me to continue working for him but not on the books if I was such a terrible worker. I of course did not take the offer since it is illegal to work under the table. I have not been to the hospital since getting fired.

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Tom mervyn February 10, 2017 at 1:31 pm

Can I fire a pregnant woman that takes care of my handicapped child . The woman has to pick my daughter up and transfer her from place to place and I’m afraid it’s not safe for my child . Lifting is in her job discription .

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