Court: Pregnancy no excuse for poor performance
November 7, 2008 by Sam NarisiPosted in: Discrimination, In this week's e-newsletter, Latest News & Views, Terminations
As tough as it is for HR to deal with, there are some employees out there who use bias claims to avoid responsibility for their own poor performance. The good news:
Courts won’t always buy it.
In one recent case, an employee’s job was in danger because she failed to meet production quotas. The company told her she had 30 days to bring her work up to speed, or she’d be terminated.
During the probation period, the employee found out she was pregnant and scheduled maternity leave.
The request was approved, but it didn’t matter — after the 30 days, her performance was still sub-par, so she was fired.
She sued, claiming it was because she asked for the leave.
Who won?
The court threw out the case, ruling the pregnancy had nothing to do with the termination.
The improvement plan was well documented and put in place before the woman even knew she was pregnant. The company wasn’t discriminating — it was just following through with the plan that was laid out for the employee.
Cite: Spector v. U.S. Bank National Association
November 7th, 2008 at 6:26 am
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November 9th, 2008 at 3:04 pm
I have a pregnant employee that has not been with the company for 12 months. She was written up last week for poor performance. Several days later she asked me for the FMLA paperwork. I advised her that she was not eligible due to her tenure with the company. 45 minutes later she responded to her PIP, given 3 days prior, and stated that she feels she was discriminated against because she doesn’t feel her peers are meeting their quotas and they have not been counseled. I will address this with both her and the manager (together), however I wonder if we have to hold her job since she is not eligible for FMLA.
Thank you.
November 12th, 2008 at 11:14 am
How long has she been with the company and how pregnant is she (when does she expect to need leave?) If she’s been with the company for 6 months and is only 3 months pregnant (won’t take maternity leave for another 6 months) it sounds like she will be eligible as long as she has worked the required hours. If she’s ready to take leave now and has been with the company less than one year, I don’t think you are required to hold her job.
November 12th, 2008 at 11:16 am
I would take a look at your state law in this case as well. Many states provide medical leave starting day one which means that while she may not be covered under the federal statute, she may still be eligible for leave under a state statute.
November 12th, 2008 at 11:39 am
Can you lay off a pregnant employee?
November 12th, 2008 at 1:33 pm
You can lay off a pregnant employee as long as the pregnancy has nothing to do with the reason you are laying her off. For example, you must have documentation of performance issues and any disciplinary action the company has taken prior to laying her off. You must also show that you are consistent in your disciplinary actions with all employees. It is also not a good idea to start looking for reasons now to lay her off, especially if she has never had any performance or productivity issues before; or singling her out for disciplinary action - especially if you have other employees who’s conduct warrants discipline but isn’t.
If you are laying off due to economic reasons, you have to show that she would have still lost her job even if she was not pregnant.
Preganancy is covered under the ADA so you have to treat the situation the same as any other employee with a covered disability. Even if your reasons for laying her off is on the level, you can easily get yourself in trouble if you are not careful.
Penny: Regarding holding a pregnant employees position, this quote is directly from the EEOC website: “Employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.” So basically, if the employee’s absence is due to giving birth, you cannot eliminate her position or permanently replace her. However, you say that she has performance issues. You must document, document, document — on her and all other employees that have performance issues too. You say she has already complained that she believes she is being discriminated against. Make sure your documentation is timely and accurate because it is way too easy to lose a discrimination suit if you don’t.
November 12th, 2008 at 3:50 pm
Under Washington law you would not be able to lay off or fire this employee. The laws regarding pregnancy are very strict here. I would check with a HR lawyer in your state before doing anything like this.