Few clients who call me because they want to fire a pregnant lady seek to do so BECAUSE of the pregnancy. None of these situations was like the employer on the TV show "Harry’s Law" who had a "one child only" policy and fired the pregnant employee for getting pregnant a second time. Nevertheless, how do you fire a pregnant lady? Very carefully.
Any adverse employment action taken against an employee known to be pregnant is certainly going to appear as though it was taken because of the pregnancy . . . even when it was not! That is, unless the employer has taken appropriate performance management actions first.
Far from being prejudiced against pregnant employees, the companies who contacted me had legitimate gripes about the employees’ performance, behavior, or attitude. Unfortunately for some companies, although those performance issues had been manifest for some time . . . the company never did anything about it.
In one case, the employee was rude, belligerent, and just plain difficult to get along with—but no one had bothered to tell her that such behavior was unacceptable at work. Of course, the day her manager was finally going to sit down and let her go because he was fed up with the employee’s nonsense, she announced her pregnancy. Now what?
In the worst case scenario, the announcement is made to peers at work, at the coffee machine, or otherwise publicly before her manager even scheduled a meeting with her. Since she had no official "notice" of performance issues before making the announcement, management is now in a difficult spot.
In a better scenario, the meeting has been scheduled, the manager and employee are seated at the conference table, and the employee breaks the news. In that situation, after appropriate congratulations, the manager needs to make sure the employee knows why the meeting was called. The performance message needs to be delivered—even if the message is slightly modified or softened from what had been planned.
If that is not done, either (1) the employee could go on engaging in the unacceptable behavior or (2) a performance message delivered in a subsequent meeting could be viewed by the employee as getting on her back about performance after finding out she was pregnant (i.e., treating her differently because of the pregnancy).
Better still would have been, of course, to have performance managed the employee from the first sign of performance, behavior or attitude issues. By the time an employee is let go, she should be well aware that there are performance issues that she’s had an opportunity to cure. The termination should not come as a surprise. Employees are less likely to bring legal claims against their employers when they’ve been performance managed and know there are multiple memos about their performance problems.
Another way to protect the company is to send an email to a manager or HR in advance of any first performance management meeting. The email should advise of the ongoing performance situation, the fact that you are scheduling a meeting, and what you expect to address at the meeting. That way, you have documentation that dates the performance issue as existing, and being addressed, prior to the meeting at which you may learn of an employee’s pregnancy, cancer or other protected situation. This also can help counter the "you started picking on me once you learned XYZ" allegation from an employee.
In short—if you see something, say something. Employees need feedback, both positive and constructive. Create a culture of open communication where managers give feedback to your employees on an ongoing, daily basis. Give praise where due, and point out shortcomings when warranted. Doing so not only can help protect against employee legal claims, but will create a culture where employees feel that they are appreciated and valued. Someone cares enough to notice what they are doing, and say something about it.
In that type of environment, you and your managers will not get caught short when an employee announces a pregnancy. And if you need to fire the pregnancy lady, you’ve got plenty of ammunition to do so and she will have seen it coming. On the other hand, perhaps she’ll correct the problems, the termination will be avoided, and you’ll have created a productive employee.
