Pregnant women who are unfortunate enough to be fired during their pregnancy often ask us: Is my employer allowed to fire me while I'm pregnant? Isn't there a rule against that?
The short answer is yes, your employer is "allowed" to fire you while you're pregnant (assuming that, like most Californians, you're at at-will employee and the termination doesn't violate an employment contract). For instance, if you falsify time records, break company policies, or even if your employer just needs to lay people off, an employer is allowed to fire you. Put differently, your pregnancy is not an absolute guarantee that you'll keep your job.
However, pregnancy discrimination is alive and well--and your employer cannot terminate you because of your pregnancy. Pregnancy discrimination laws ban employers from using pregnancy as a "motivating reason" to terminate you. This means you should look beyond your employer's stated reason and ask: was I treated worse or differently than non-pregnant employees? Did my employer consider my pregnancy, my maternity leave, or bias against parents in making the decision to fire me?
Exceptions to the Rule of At-Will Employment
Most employees in California are "at will" employees. What does that mean? It means your employer can fire you for any reason, for no reason, and even for a factually wrong reason (for example, that you were late one day, when you actually weren't). What your employer can't do is fire you for an illegal reason. Illegal reasons include race, gender, disability, and, you guessed it, pregnancy (among other things).
How Do You Prove Pregnancy Discrimination?
You can show that your pregnancy was a motivating reason for your termination in a variety of ways. (These methods of proof are the same in all kinds of discrimination cases.) The following are some examples:
The employer’s “reasons” are lies. Maybe you were terminated because you had a “bad quarter,” but in reality, you outperformed all but one of your colleagues (none of whom were pregnant). The employer’s reason in this case is a lie, and suggests that they are hiding the real reason for the termination—your pregnancy.
The timing is suspicious. You had great reviews up until your pregnancy, and then you kept doing the same thing as before. You were performing well. All of a sudden, you got written up for minor “issues” that no one ever cared about until you disclosed your pregnancy, and then were terminated on account of the write-ups. The timing of these write-ups and the termination is suspicious. Unless there is some other, legitimate explanation, it looks like pregnancy discrimination.
In one particularly egregious example, an employer revoked a pregnant woman’s job offer 20 minutes after she asked her to-be supervisor about their maternity leave policy. Why? The employer claimed they needed someone “long-term” and assumed a pregnant worker would not be reliable as a permanent employee. (Note that this is also probably gender discrimination—of course mothers can be reliable employees.)
You were treated worse than non-pregnant employees. Maybe it is normal at your organization for people to receive a three-step disciplinary process before termination, and no one has ever been terminated without that procedure. You were an exception, and you just so happened to be the only one who was pregnant. This strongly suggests that the employer’s motives were discrimination, and you were terminated “because of” your pregnancy.
Your employer made comments about pregnancy being a burden. Often, employers are smart enough to keep their discriminatory motives under wraps. Sometimes, though, employers say obvious things that prove they resented your pregnancy and took adverse employment actions because of it. Maybe they said that they just “couldn’t have someone going on leave” or that “pregnant women never really want to come back to work after leave” or something of that nature. These comments evidence discriminatory intent and are evidence of pregnancy discrimination.
Is it Pregnancy Discrimination if You're Fired for Being Sick During Your Pregnancy?
Yes. It is usually illegal to fire someone for being sick during their pregnancy. Pregnant workers in California are entitled to leave under the Pregnancy Disability Leave Law (PDLL) as long as their employer has five or more employees. You are not required to have worked for any minimum length of time (as compared to under CFRA or the FMLA, which are discussed below) to qualify. Leave under the PDLL can be intermittent, meaning you don't take it all at once.
Your right to intermittent leave under the PDLL is what protects you from being fired for being sick during your pregnancy. Intermittent leave can be a day here or there--for instance, when you are feeling so nauseous you can't work. Your employer can require you to get a doctor's note, which most OB-GYNs are happy to provide.
Talk to an Experienced Pregnancy Discrimination Lawyer
We are passionate about pregnant women's rights at work and believe fairness for pregnant women is a matter of economic equality for women and their families. Pregnancy discrimination is a social justice issue. We provide free consultations for all pregnancy discrimination clients. Contact our experienced pregnancy discrimination lawyers today.