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Can you fire a pregnant employee?

contributed by the attorneys who write Tennessee Employment Law Letter
Miller & Martin

The answer to that question is easy: It depends. It does of course depend on the facts surrounding the discharge. It's dangerous to fire a pregnant employee because it's unlawful to discriminate against pregnant employees under the Pregnancy Discrimination Act (which is part of Title VII of the Civil Rights Act of 1964). But for the discharge of a pregnant employee to violate the law, it must be because of the pregnancy.

A recent case helps us consider how the courts will handle the discharge of a pregnant employee. Let's consider the matter through the following questions and answers.

Q: If an employee is fired two days after she tells her employer she's pregnant, does she have the basis for a successful pregnancy discrimination lawsuit?

A: Not necessarily.

Q: When the firing is so close in time to the announcement that the employee is pregnant, how is it possible for the employer to successfully defend a pregnancy discrimination case?

A: By showing that the employee's pregnancy had nothing to do with the firing. In other words, proximity alone doesn't carry the day in a pregnancy discrimination case.

Q: How can an employer show that pregnancy had nothing to do with the discharge?

A: By establishing that the employee had been performing her job poorly, documenting the poor job performance, showing that she had been counseled about the job issues, and demonstrating that a final decision to fire her had been made before the employer had knowledge of her pregnancy.

Q: So if the employer had made a decision, let's say, on September 3 to fire an employee on September 6 and then learned on September 4 that the employee was pregnant, the employer could still go forward with the discharge on September 6?

A: Yes - as long as the reason for the firing (as decided on September 3) was legitimate and could be established with objective evidence.

Q: So once an employer has decided to fire a pregnant employee, it's always OK to go forward with the firing as long as the employer didn't know about the pregnancy at the time the decision was made to let the employee go?

A: Not exactly. If the complaints of poor job performance turn out to be unclear, there's no documentation of the poor performance, and the employee hasn't been counseled about the issues and given a chance to improve, then a dismissal of a pregnant employee within a short period of time after she has told the employer about her pregnancy can be trouble. At the very least, she should be able to get her case before a jury, and you never know what's going to happen then.

Copyright 2002 M. Lee Smith Publishers LLC. This article is an excerpt from TENNESSEE EMPLOYMENT LAW LETTER. This newsletter does not attempt to offer solutions to individual problems but to provide information about current developments in Tennessee employment law. Questions about individual problems should be addressed to the attorney of your choice.

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