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
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
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
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
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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