Rush to fire or demote pregnant employee often backfires

When it comes to discrimination claims, timing can be everything. An employer that discharges or demotes a pregnant employee (or one who has just given birth) is asking for a discrimination or retaliation lawsuit.

And unless they have committed some egregious act or performed disastrously, employees who are fired or demoted under those circumstances almost always get a shot at a jury trial. Of course, juries often side with those who look more vulnerable—such as a new mother.

If you have a poorly performing employee who is pregnant or just gave birth, don’t do anything adverse until she has returned to work for some time. Then steadily document her deficiencies. Only then should you consider firing or demoting her.

Recent case: According to her employer, Ellen Schaaf was having some performance problems at work. She was placed on a performance improvement plan.

While Schaaf was out on pregnancy and maternity leave, her boss told her she would have 30 days after her return to address the requirements of the performance improvement plan to avoid a demotion. Her supervisor also told her that while she was on leave, she was forbidden to contact any co-workers or do any work for the company (which might have helped her meet the plan goals). Meanwhile, the employer met to discuss her performance and decided to demote her when she returned.

On her first day back on the job, she was demoted. She sued, alleging pregnancy discrimination under the Pregnancy Discrimination Act (PDA) and interference with FMLA rights.

The employer said Schaaf’s poor performance justified the demotion. The trial court said she should have a chance to present her case to a jury. Because the timing was suspicious, the court felt that a jury would best decide the truth—whether she was demoted for poor performance or for being pregnant and taking FMLA leave. (Schaaf v. SmithKline, No. 1:04-2346, ND GA, 2008)

Final note: You can safely fire or demote someone on FMLA or pregnancy leave—if you are absolutely sure you can substantiate a solid reason or if you can show that she would have been discharged as part of a larger layoff. But you must be prepared for a fight. The legal costs and lost time may not be worth the hassle if you can hold off and build a case later.

Reinstatement rights under the FMLA

The FMLA provides eligible employees with up to 12 weeks of unpaid leave for pregnancy, birth and newborn child care. The law also provides these job protections:

  • Employees taking FMLA leave are entitled to reinstatement to the same or an equivalent job.
  • The job does not have to be the exact one the employee held before taking leave. It must, however, be similar in pay, benefits, work conditions and intangible elements like prestige.
  • Employers cannot retaliate against employees for taking FMLA leave. You cannot consider their leave as a negative factor at evaluation time. Nor can you deny a promotion because the employee may take additional time off.