Business Minded, Results-Oriented Legal Services

Can I fire an employee who is pregnant or on maternity leave?

On Behalf of | Apr 7, 2021 | Employer Defense

Unfortunately, conducting layoffs is a normal part of many businesses when the economy takes a downturn or when other market changes occur. You might feel the need to lay off one of your employees, but if that employee is pregnant or on maternity leave, you might be concerned about opening yourself up to a lawsuit. Is there a way to do it legally?

Know the law

There are several laws in place, both state and federal, that protect the rights of pregnant employees and employees on maternity leave.

The Family and Medical Leave Act is a federal statute that guarantees 12 weeks of leave for the birth of a child.

If you fire an employee for the sole reason that she will soon need to take maternity leave, you will be in violation of that statute. This can open you up to lawsuits from the employee herself, as well as from governmental agencies.

For example, the employee might file a report of discrimination with the Federal Equal Employment Opportunity Commission. On the state law side of things, you could also find yourself in a lawsuit from the California Department of Fair Housing and Employment.

If the employee’s termination occurs in close proximity to the employee’s request for leave, or during the leave itself, or immediately thereafter, it is highly likely that the employee will file a discrimination – retaliation lawsuit in State Court, since California’s discrimination laws are more favorable to the employee.

This doesn’t mean that you can never fire a pregnant employee. All it means is that her pregnancy and maternity leave cannot be your reason for firing her. If you can prove real, demonstrable reasons why firing her was the right choice – such as a history of poor work or serious misconduct – then you will be able to use that as a defense in any discrimination lawsuits.

Both federal and state employment law is an ever-changing field. It’s important to stay informed as to the current state of the law in order to avoid a potentially costly lawsuit.