Termination and Pregnancy Discrimination

Issue: A pregnant part-time employee has refused your requests to return to a full-time schedule. Your company is about to embark on a significant and lucrative new project. Several new employees have been hired and her return to full-time work would round out the number of employees needed to complete the project. The employee explains that she has commitments to her children and a graduate program she enrolled in at the local college. Her supervisor has tried to sway her by offering to fill in for her one afternoon a week so she can leave early for her classes. She still refuses, despite being told that she will be terminated if she does not agree to return to a full-time schedule. You issue a written notice of termination and select a full-time worker to replace her. The employee claims you only fired her because of her pregnancy. What now?

Answer: You were aware of the employee’s pregnancy and the likelihood of an upcoming request for maternity leave. However, you can show that the employee was terminated because she refused to work on a full-time schedule when she was needed. Although she could argue that she was offered an opportunity you knew she would refuse so you could fire her, there are several factors which could prevent her from proceeding.

Prior accommodation.
It’s undisputed that your company has never denied any employee maternity or paternity leave. You didn’t oppose the employee’s previous maternity leaves and, after she returned to work, she wasn’t punished for having taken maternity leave. In fact, you granted her request to work on a part-time schedule so she could spend more time with her family.

Significant new project.
Your company is about to begin an important new project and had specifically hired several new employees for this project. The employee was deemed important enough to the project that you requested she return to a full-time schedule. It was clear you needed an individual working full-time in her position because the day the employee was discharged, you selected a replacement who was already working full-time and immediately started looking for someone to fill that worker’s position.

Reasons for refusing full-time schedule.
The employee was not prevented from returning to a full-time schedule by any disability associated with her pregnancy. Part of the reason the employee refused to return to a full-time schedule was due to her participation in a graduate program. She turned down the request for full-time work even after her supervisor offered to cover for her one afternoon a week.

Inference that discharge was due to pregnancy unlikely.
Although the employee could possibly establish a prima facie case because she was pregnant and qualified for her job at the time of her termination, it is unlikely that a court would infer from these facts that the employee was fired in order to avoid giving her maternity leave. The employer was able to clearly demonstrate that the employee previously had been accommodated for pregnancy; that an important new project was about begin and the employee was considered important enough to repeatedly seek her to return to a full-time schedule; and that part of her refusal to return to a full-time schedule was due to her own agenda stemming from her participation at a local college.

Cite: Gleklen v Democratic Congressional Campaign Comm, Inc (DDC 1999) 75 EPD P45,774.

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.