Challenge: I am the only HR professional for our small company. One of our managers recently told me that he plans to terminate a pregnant employee on his team. He says that her performance has fallen off since she became pregnant. I am concerned about terminating a pregnant employee without a strong basis. How should we proceed to make sure we don’t get sued?
Solution: You are right to be concerned. Legal claims related to pregnancy remain stubbornly high and are likely to increase now that the Pregnant Workers Fairness Act is in effect and final regulations have been issued. Claims related to performance can be difficult to defend, particularly when the employee is pregnant.
To start with some background, pregnancy often triggers unconscious biases – assumptions that influence thinking and can affect employment decisions.
According to social psychologists, we often make assumptions about pregnant employees, such as they will not be committed to their jobs, they will be absent frequently, and they will miss deadlines. Note that these assumptions do not reflect actual work performance. Rather, they usually arise when the pregnancy is revealed, without any change in performance.
These assumptions influence what we notice and remember about the pregnant employee. When something happens that is consistent with our assumptions, we are more likely to notice it and remember it. To illustrate: if a pregnant employee takes a sick day, we will notice it when it happens and recall it even weeks later because it is consistent with our assumption that pregnant employees are frequently absent. If on the same day a nonpregnant employee is out sick, we won’t find anything remarkable about it. After all, people get sick from time to time, and we don’t think that it means that this employee is not committed to their job. We probably won’t give it a second thought when it happens or in the future.
One additional point about how assumptions influence thinking: when we don’t know the reason for a pregnant employee’s action (or inaction), we often attribute it to their pregnancy. For example, if they are late with an assignment, we are likely to think it is because they aren’t doing a good job because they are pregnant, but if a nonpregnant employee was similarly late, we are more apt to wonder if it was because they have too much on their plate.
It is easy to see how these influences on our thinking can play a role in employment decisions like discipline (supervisors are more likely to discipline what they view as repeated offenses, also more likely to be lenient with an employee who is viewed as a good performer), performance reviews (supervisors are more likely to remember incidents that are consistent with their assumptions), opportunities (special assignments are likely to be reserved for those who are perceived to be hard workers), and the like.
Applying this to your situation, we have to look closely at the manager’s contention that the pregnant employee’s performance has deteriorated since she became pregnant. We want to make sure that there is objective evidence of the deterioration (to the extent possible) and compare her performance to that of nonpregnant employees who are not being terminated. After you pull the employee’s last few performance reviews, you may want to ask the manager to provide more specific details about the deterioration (identify the deficiencies, provide examples if written work is involved, dates of missed deadlines, employee’s reasons for missing deadlines, any complaints by customers or others, etc.). You probably also want to know about the performance of nonpregnant employees in the department (examples of written work, explanation why their work meets standards, whether any deadlines were missed, whether others have complained, etc.).
Another item for consideration: The manager noted that the employee’s performance fell off after she became pregnant, which could have been due to symptoms of pregnancy that made it harder for her to work. If she requested accommodations for pregnancy symptoms, it is important for you to know what was requested and what was provided. You may have to educate the manager about how subtle requests for accommodation can be; if the employee said that she was having trouble doing her job because of morning sickness, for example, that can be enough to qualify as a request under the Pregnant Workers Fairness Act. If she requested an accommodation but was not accommodated and her performance suffered as a result, terminating her would be asking for a very expensive PWFA lawsuit.
Also, you may want to look at whether other pregnant employees at your company have been terminated, particularly by this manager. If your company is sued, this is one of the first things the plaintiff’s lawyer is going to look for, so you might as well learn now what the answer is.
What to do once you have gathered all your evidence? Let’s look at this situation with both possibilities in mind: the employee’s performance is not bad enough to require termination, and it is.
If the employee’s performance not bad enough to warrant termination, the manager will probably need support from you to turn the situation around. For example, he may need resources to understand how pregnancy bias may have affected his interpretation of her performance and an explanation of the benefits to the company of retaining a trained and experienced employee. If the employee needs accommodations, the manager may need assistance engaging in an interactive process with the employee to determine what reasonable accommodations can be provided. You might explore with him what additional training the employee needs to improve her performance, ways to provide it, and best practices for giving feedback. If she isn’t given an opportunity to improve – particularly if it is the company’s regular practice to provide second chances – her lawyer is sure to use the lack as evidence that the company was trying to get rid of her because of her pregnancy.
If the employee’s performance is bad enough to warrant termination, alert your company’s employment counsel and show them the evidence that the termination is a legitimate business decision. If they give you the green light, they may suggest a severance package with a release of claims. Under these circumstances, that would be an excellent suggestion.
