Can I Fire an Employee that is Pregnant?

What happens if I fire someone based on discrimination? I just recently attended a seminar at a local employment law firm that discussed the statistics on Nevada Equal Rights Commission and the Equal Employment Opportunity Commission and they are skyrocketing!

There are many different types of discrimination, but let’s focus on pregnancy discrimination this time around. Here’s a real life example to get the wheels turning in your head…a colleague calls me and asks for my advice over about a month long period of time. “Leon” was feeling pressure from his boss to fire a hostess in his restaurant, the problem is, she was pregnant. “Leon” was somewhat new to this particular restaurant and had just transferred over from a sister restaurant so he was familiarizing himself with the staff.

After calling his very smart HR friend, “Leon” began with the proper steps which was to get to know the employees, learn the systems and differences in the restaurant, and reviewing employee files. When he sat down to review “Joann’s” file, he didn’t see any write-ups or any job performance issues in her file. He even looked through his emails to see if he missed anything that his boss could have sent him as to why “Joann” should be terminated. When he still came up with nothing, he met with his boss.

Leon’s boss was not the most educated manager on human resources related issues and his biggest problem was that he was too quick to jump the gun on employee related issues. His boss’s explanation of why he wanted to get rid of “Joann” was simply because she was pregnant and he felt like she couldn’t do her job. He also thought it didn’t put out the right impression for the restaurant. Hmmmm…..does anyone see a potential problem here?

At this point, “Leon” called his very smart HR friend, and I began to explain to his boss the repercussions and legal ramifications if he were indeed to move forward with this discrimination based termination. The Pregnancy Discrimination Act is explained in detail on www.eeoc.gov. His boss then got the “bright” idea that he would make up things she was doing wrong. This is clearly never a good idea.

We then discussed the standards of consistency and ensuring that all employees are held to the same standard and counseled consistently when they do not meet a job performance standard. This is where an employee handbookis essential to every organization – big or small, 2 pages or 50 pages. It allows you to lay out your specific rules and code of conduct, which are the standards you can hold all employees too. If you don’t have an employee handbook, I highly recommend starting the process of obtaining one unique to your organization. I have written quite a few and can attest that it has saved me more times than I can count both in union and non-union organizations in unemployment cases, meditations, arbitrations, grievances and hearings.

His boss’s next idea was to move her position into the office where she would not be seen by the public. My first question to him was, “will you be relocating the entire host stand, or just her?” When he answered “just her,” this also falls into the discrimination category. You cannot move a person’s position into another location of the restaurant based on the above. What he could do, is move the entire host stand to the office, which is out of the public’s view, but then what sense would that make, isn’t the purpose of a host stand to greet guests? Exactly.

So the moral of the story is, and I know it sounds very common sense, but you cannot fire someone based on the fact that they are pregnant. There are laws and there are protected classes and this is one of the many. Ramifications are huge! Trust me, you want to be very careful when dealing with any employee in a protected class.

Now some of you may be thinking about a very intelligent question of – what happens when I have a pregnant employee that can no longer perform the essential functions of her job? This is different. Many companies have a light duty program, and can offer an alternate position that could accommodate the employee’s condition, such as an office position where filing and answering phones might be approved by her doctor. If this is not an option, then in companies that are required by law to offer FMLA, offer the employee the legal paperwork and start the process of getting proper documentation. For FMLA information and guidelines, please see www.fmlaonline.com

What are the key takeaways here? First – counsel all employee’s based on job performance and specific standards of your organization using your employee handbook as a guide. Second – you cannot change a person’s position based on looks whether pregnant or not pregnant. Third – always do your research and consult a Human Resources professional or General Counsel whenever you are dealing with an employee in a protected class.