HR Fact Pattern: I was an assistant manager at a restaurant in California. I’m pregnant and have noticed that my general manager began treating me strangely. Then they promoted an employee to be assistant manager, then another day a new person was hired as assistant manager, making 3 assistant managers! The same day the new assistant manager began working, I was dismissed from work for the rest of the day for performance issues. He removed me from my scheduled shifts, giving me less work. I even complained to the owner over the phone to ask him why I was being told to leave work.

I also gave official written notice requesting maternity leave to management, And soon after they fired me! The employee manual even states that any woman that is disabled due to pregnancy or childbirth is entitled to pregnancy disability leave (PDL) I really cannot believe what has been done to me.

Even though, this restaurant has ‘at will ‘employment policy it doesn’t apply to pregnant women who request maternity leave, so it was wrongful termination for him to fire me right?

Response: Let’s clear up a little misconception. Getting pregnant doesn’t protect you from termination. My rule of thumb is that you can fire anyone. You can fire a Pregnant, Hispanic, Lesbian, Born Again Christian, Age 45, disabled woman, even though every single one of those characteristics puts her into a protected class (in California–sexual orientation isn’t protected everywhere, but I suspect that’s just a matter of time). But, what you can’t do is fire someone BECAUSE she’s pregnant, Hispanic, blah, blah, blah. So, it’s not true that your job is safe because you requested maternity leave.

Now, are businesses wise to carefully consider terminations for all employees? Yes. While we have “at will” employment in 49 of 50 states (Montana being the one hold out), in practice, we don’t really follow “at will” employment. Most companies won’t fire you just because they can. Firing people is horrible, and most people are basically nice. So, in most cases, you see people terminated for performance, attendance problems, attitude, general behavior or a layoff for financial reasons. So, while you can fire someone because it’s Tuesday, most businesses don’t. And if that employee that you fire, simply because it’s Tuesday, falls into one of those protected classes (and really, everyone is in a protected class because we all have race and gender and national origin, but I digress), the courts are not going to believe you when you say that’s your reason.

So, let’s discuss your case. If I follow correctly, you are an assistant manager at a restaurant. Everything is fine. You get pregnant and tell the boss you are pregnant. Boss suddenly starts treating you differently, cuts your hours, hires a replacement for you and fires you after you formally request maternity leave. Correct? If the cause of the different treatment is the pregnancy, then that’s illegal. You can hire a lawyer, or you can file a complaint with the EEOC. The lawyer is more expensive, of course, but the EEOC is pretty slow.

But, there was one other thing you said–you were sent home for “performance reasons.” So, my question is, do you have performance issues? Because if you do, then the termination could be legal. Restaurants often have pretty easily measured performance goals, so it can be pretty obvious when an assistant manager is failing to meet expectations. If you were under the impression that your pregnancy protected your job, and slacked off because of it that could mean the firing was perfectly legal.

The Supreme Court just handed down a new decision on pregnancy discrimination that essentially requires companies to provide accommodations for pregnancy if they provide accommodations for any disability. But, I don’t think you asked for accommodations and were denied.

So, it’s possible that you were fired for an illegal reason–pregnancy. But, it’s also possible you were fired for performance. If you believe your performance was great, file a complaint with the EEOC or call an attorney. If you think it was performance, well, bummer.

By: Hanna Yurkovetskaya