Ask the BPHR Advisor
BPHR’s Director Lisa Salcido, SPHR, SHRM-SCP provides actionable answers to your pressing HR questions.
Question: We have an employee who just told us that she is pregnant. We were planning to address her subpar performance in her annual review. Now that she’s pregnant, she definitely won’t improve and will take a lot of time off. Can we terminate her?
Answer: Pregnant workers are provided a high level of protection so it could be risky to terminate. However, it’s a common misconception that you can’t fire a pregnant women ever. You can terminate a pregnant employee but the reason cannot be because of the pregnancy.
The Pregnancy Discrimination Act (PDA) is a federal law that covers employers with 15 or more employees and prohibits pregnancy discrimination. Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).
To lawfully terminate your employee you would need to be able to show that the decision was based solely on a lawful reason (such as poor performance) and not based on the pregnancy or anything related, like the need for medical leave.
Since you were only planning to address her performance in the future, it sounds like the employee is unaware that she was not meeting expectations nor has she been given a chance to improve. If you were to terminate, the timing alone would appear that the reason for the termination was her pregnancy announcement and she could bring a discrimination claim against your company. It would be difficult to defend that claim without documentation of the poor performance.
It’s best practice to always address poor performance as soon as possible and to give the employee a reasonable chance to improve. Also, always treat and accommodate a pregnant employee the same way you would any other temporarily disabled employee, (e.g. a male with a broken leg). Don’t make assumptions about performance while pregnant or the length of maternity leave.
Take a More Balanced Approach to HR with BPHR
With BPHR, an HR Generalist will help you navigate employment law ensuring your compliance so you can focus on more strategic tasks.
Want to learn how your organization can benefit from BPHR? Have a question for Lisa Email Lisa directly
DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion