A mother who is terminated while on maternity leave may assume that she has a legal claim for discrimination. However, as with most legal claims, it depends. It depends on the reason for the termination and whether that reason can be established as legitimate.
When termination during maternity leave is illegal
There are certainly some situations where it is illegal to terminate an employee while on maternity leave. If the termination is based solely on the fact that employee is out on maternity leave, or because the employer is concerned that the employee will not be able to perform the same once she returns, that termination would constitute unlawful pregnancy discrimination.
When termination may not be discrimination
On the other hand, if an employer determines that an entire department needs to be eliminated, that could be considered a legitimate business decision. If the pregnant employee happens to be on maternity leave while the reduction-in-force takes place, her termination would likely not be illegal. Of course, some employers have been known to "hide" a discriminatory action within a legitimate one.
The protections of the FMLA
Some employees also assume that the FMLA, or Family and Medical Leave Act, protects them from being terminated while on maternity leave. That is not necessarily the case in every situation. It is true that the FMLA requires employers to return an employee to the same position after taking maternity leave. However, there is no guarantee that your job will still exist, as in the case of the reduction-in-force.
Termination in anticipation of pregnancy-related limitations
Another issue that may arise with the termination of an employee during maternity leave is whether the action was taken in anticipation of a pregnancy-related limitation upon return to work. For example, in one case a pregnant employee was terminated after she gave notice that she would need to be accommodated with a lifting restriction, during her pregnancy. She was terminated immediately because the company didn't "put people on light duty who are pregnant." This is illegal.
Why employers have a problem with pregnant employees
Basically, many employers are concerned about their employees' productivity after maternity leave has ended. In fact, some assume that after returning from maternity leave, the employee still will not be able to perform their job satisfactorily. Of course, this is an unfounded concern. Another issue is that many employers simply do not want to deal with employees who require intermittent time off for doctors' appointments and maternity leave itself.
What should you do if you are terminated?
If you were terminated while on maternity leave, the best thing to do is consult with an employment discrimination attorney to determine whether you have a case. Only a consideration of the facts surrounding your termination can allow you to make an informed decision about filing a lawsuit. If the evidence shows that your termination was entirely unrelated to your pregnancy, then you likely do not have a claim. Your employment discrimination attorney can help you sort through the facts and determine whether you should bring a claim.
If you feel you have been the victim of pregnancy discrimination, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Michel Allen & Sinor , either online or by calling us at (205) 265-1880.