Written by attorney Jibit Cinar

Can I Fire My Pregnant Employee for Inadequately Performing her Job Duties?

Yes, but only if you can clearly show that the reason for firing her is not because of the fact that she is pregnant. California's Fair Employment and Housing Act (FEHA) prohibits an employer from firing an employee because of her sex. (CA Government Code Section 12940(a)). Within the meaning of FEHA, "sex" includes "pregnancy, childbirth, or medical conditions related to pregnancy or childbirth." (CA Government Code Section 12926(p)). This law is the basis for claims of wrongful termination as a violation of public policy. However, this doesn't mean that an employer cannot discharge a regnant employee for other valid reasons unrelated to the fact that she's pregnant. CA has adopted a 3-prong test established by the United States Supreme court for trying such employment discrimination claims. Under the test: 1. The employee making the claim must establish a clear case against her employer by offering direct evidence that she was performing her job competently, but was fired. In addition, she must show other circumstances suggesting discriminatory motive on the part of the employer. For example, an employer fires the employee for incompetent job performance, however, managers who deal directly with the employee state that she was doing her job well. 2. If an employee fulfills her obligations in the first step of the test, it is now up to the employer to offer legitimate nondiscriminatory reasons for his actions. For instance, the employer can now say that internal budget cutbacks were the actual reason why the employee was terminated. 3. If the employer successfully produces evidence as required by step 2 of the test, the burden then re-shifts to the employee who must show that the employer's reason was actually a pretext, or a motive, for discrimination. That is, the employee can still show that her employer used the budget cutbacks merely as an excuse to fire her specifically, instead of somebody else in the company. Please take note, however, that this test does not apply when an employee resents direct evidence of discrimination. This is evidence which proves a fact without having to make any presumptions. The only time an employer can avoid liability when the employee provides direct evidence is by showing that the same employment decision would have been made even without reference to this so-called "direct evidence."

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