Show pregnancy didn’t prompt mom’s firing

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in Discrimination and Harassment,Human Resources

It’s become a little bit harder for women alleging pregnancy discrimination under the California Fair Employment and Housing Act (FEHA) to win discharge lawsuits. To prevail, a new mother has to prove that pregnancy discrimination was a “substantial motivating factor” in her discharge.

What’s more, even if she does, her employer can claim it would have terminated her anyway for other perfectly legal reasons. That will block an award of back pay and other costly penalties.

It’s one more reason to carefully document all discipline and consider the complete picture when making termination decisions.

Recent case: Lorena had some minor disciplinary write-ups. Then she went out on maternity leave. While still on leave, she came to the office and got into a heated argument with several co-workers.

She returned from maternity leave on schedule, but was fired about three hours later, allegedly for performance issues.

Lorena sued and persuaded a jury that her pregnancy was a ­motivating factor in her discharge. The em­ployer appealed.

The appeals court said the lower court used the wrong standard: Lorena had to prove that her pregnancy was a substantial factor in her discharge. The appeals court ordered a new trial. (Alamo v. PMIC, No. B230909, Court of Appeal of California, 2nd Appellate District, 2013)

Note: Unfortunately for the employer, it won’t be able to raise the defense that it would have fired her for legal reasons anyway. Reason: It didn’t raise that question in its original pleadings.

Final note: Your best defense to any lawsuit is always good rec­­ords. If you can show the em­­ployee was discharged for poor performance and that ­others with similar performance problems suffered the same fate, you’ll win most FEHA lawsuits.

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