Pregnancy and Reductions in Force: Perfect together
Yesterday I read Ellen Simon’s post called “Getting Fired Because of Pregnancy is Illegal.” She was commenting on the New York Times article, “When the Stork Carries a Pink Slip,” by Lesley Alderman. In these days of mass lay offs, pregnant woman and mothers are getting hit hard. This is obvious to me because our employment law firm in New York City gets daily calls from pregnant woman holding pink slips. In fact, when I arrived at the office this morning, a pregnant woman, Mary (not her real name) was waiting to see me.
Mary was upset because she had been let go by her employer, a large retailer in New York City. Mary’s employer had selected 30 employees for termination (Reduction in Force or RIF) and she was selected for the RIF. Mary wanted to know if it was legal for a company to fire a pregnant person. The answer, as Ellen Simon explains, is simple. It is only illegal if the company fired Mary BECAUSE she was pregnant. It is legal to fire a pregnant employee for other reasons. For example, if Mary was fired because of poor performance or because she was no longer needed, her termination would be legal even though she is pregnant.
In Mary’s case, her employer had selected 30 employees to be terminated, including her. But the company also created many new positions due to the restructuring of the company and the 30 employees were told to apply for the new positions. More than half of those terminated were hired back. But no one would hire Mary with her protruding pregnant belly, even though Mary was more qualified and experienced than most. As Mary’s boss candidly told her, “look, no one is going to hire you while you are pregnant, so just give up and enjoy your time off.” A statement like that indicates that Mary’s pregnancy was a factor in the company’s decision not to re-hire her. So Mary may have a case and therefore she should get a much larger severance package.
