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position elimination & pregnant

BeateBeate 7 Posts
in HR & Employment Law Vote Up0Vote Down
What possible issues are we faced with if we are looking to elimiate a position due to economic reasons, and the employee is pregnant.

If economic times get better, would we have to hire this employee back, after the maternity leave?
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Comments

  • 3 Comments sorted by Votes Date Added
  • cleaveycleavey 3 Posts
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    The person has a right under federal law, and possibly under State law to be treated the same as anyone else in the company. If she is the only one being targeted, you will have to prove to a court that she was targeted in spite of her pregnancy and not because of it. If she is part of a group targeted, you will still have to show that she was included for neutral reasons. Additionally, she may be able to claim that you laid her off because you knew that she was going to need leave protected by the FMLA. If you do lay her off, then there is not maternity leave and she must be treated like anyone else who was laid off. The only catch is if she needs the maternity leave when you call her back. I think that at the time of recall, if she meets that standards for FMLA - worked for more than twelve months and worked 1250 hours during the twelve months immediately preceding the leave request - you may have to give her twelve weeks off at the time of call back, but this is an issue I have not seen decided.
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  • Down_the_MiddleDown_the_Middle 771 Posts
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    If you've carefully reviewed your criteria for layoff and then determine that the employee is pregnant and can document why you've chosen the position, I don't see any problem in defending what you've done. You've left out alot of info that might suggest differntly, but at face value, I see no problem. Pregnancy is not a shelter from being layed off as long as it's not used as the criteria.
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  • SystemSystem 5,885 Posts
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    I agree with cleavey and Down-the-Middle. Make sure your decision is based on legitimate reasons that are unrelated to her pregnancy. And make sure that you could prove them in court in case she sues for discrimination or retaliation under the FMLA, Title VII, the federal Pregnancy Discrimination Act, Tennessee Human Rights Act, or Tennessee Maternity Leave Act.

    James Sokolowski
    Senior Editor
    M. Lee Smith Publishers
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