Can someone be laid off while on Maternity leave?

Asked over 2 years ago - Philadelphia, PA

Employed with the large company in PA for 10 years. Went on FMLA/maternity leave. 11 weeks into the leave was when the layoff happened (over the phone of course). Is this legal? Thanks in advance.

Attorney answers (2)

  1. Marilynn Mika Spencer

    Contributor Level 20

    5

    Lawyers agree

    1

    Answered . I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

    It is legal to lay off a person who is on maternity leave but it is not legal to lay off a person BECAUSE she is on maternity leave.

    Pregnancy discrimination is unlawful under federal law. In 1978, Congress amended the Civil Rights Act of 1964, Title VII 42 U.S.C. §§ 2000e to 2000e–17, by passing the Pregnancy Discrimination Act.

    Under the Pregnancy Discrimination Act, "discrimination" means to treat a pregnant employee differently from non-pregnant employees, and adversely. The employee must be able to make a connection between the discriminatory treatment and the protected status (being pregnant). In other words, the employee will have to show that her pregnancy is reason the employer is treating her adversely. There are various ways to do this. Negative comments from supervisors or management; a sudden change in treatment (for the worse) as soon as or shortly after the employer learns about the pregnancy or the effects of pregnancy; or other incriminating conduct. Note it is not unlawful for an employer to apply the same leave of absence policy to pregnant and non-pregnant employees.

    For information on pregnancy discrimination, see:
    http://eeoc.gov/laws/types/pregnancy.cfm

    For information on the Pregnancy Discrimination Act, see:
    http://eeoc.gov/laws/statutes/pregnancy.cfm

    Please look at my guide to unlawful discrimination: http://www.avvo.com/legal-guides/ugc/what-is-un... which should help you understand lawful and unlawful discrimination, how to pursue a claim and time limits.

    This law is enforced by the Equal Employment Opportunity Commission (EEOC). www.EEOC.gov Keep in mind you may have only 180 days to file a charge with the EEOC, unless your state has its own similar law, in which case the filing time is probably 300 days. But you MUST confirm the filing deadline with an attorney licensed in your state.

    Employment law is complicated and fact specific. You should obtain legal counsel before pursing the claim. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.

    Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.

    I hope you can resolve your situation and wish you the best.

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your... more
  2. Edward Clement Sweeney

    Pro

    Contributor Level 14

    3

    Lawyers agree

    1

    Answered . I agree with Ms. Spencer's very impressive and full answer as to the law in this area. On a more practical note, if there was a general reduction in force (RIF), it may be difficult to do anything about what occurred. I would need to know exactly how many people got laid off, who they were, did they share similar charactersitics (e.g., health problems, out on leave, etc,). I would also want to know if there were other people who were not fired who worked in the same job you did. There may be a case if they fired you while you were out on maternity leave/FMLA leave and they kept others in the same job classification. More facts are necessary.

    Feel free to call for a free interview.

    Ed Sweeney
    Wusinich and Borogan
    610-594-1600

Related Topics

Employment

Employment law governs employee pay, non-discrimination policies, employment classifications, and hiring and firing at the federal, state, and local levels.

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Discrimination in the workplace is when one or more employees are treated unfavorably, based on characteristics like age, race, gender, or sexual orientation.

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