QUESTION: I hired an employee about six months ago. For the first two months, she was great. Then things started to slowly erode. She wasn’t completing her tasks, she was low on energy and motivation, and there were issues with her behavior and attitude. Shortly after this became a problem, she announced that she’s pregnant. I talked to her about the problems recently, but I think I may need to terminate her employment. Can I terminate a pregnant employee, or will that subject me to liability?
ANSWER: To best answer your question, I’d need to know the state where you practice and the number of employees you have. Whether or not there are protections for pregnant employees depends on those two factors. For example, if you reside in Georgia, the protections do not specifically kick in until you have 15 or more employees. Whereas if you reside in New York, those protections kick in if you have just one employee. Therefore, you will want to confirm what this means for you before taking any chances on termination.
This is not to say that employers in small businesses who are below any particular threshold are free and clear of all potential claims and lawsuits. It can still happen, it's just a rarer and more difficult path for an alleged victim to take.
To be safe, I recommend you conduct more counseling with her as well as establish documentation before termination. This should occur at least once, if not several times, before termination. This is not only a good management practice, but it will help you in the event that a claim or lawsuit is filed post termination.
In these discussions and documenting, you need to address clear, objective, job-related issues. This needs to be specific. What does low energy mean? How is it presenting itself in the workplace? Is her work not getting done? Is she not accomplishing her tasks in a timely manner? What is she not managing that’s in her job description?
You need to be able to clearly communicate the problems and illustrate them with examples and specifics. This is the only way someone will know how to improve. Plus, it helps ensure that communication is not misconstrued and twisted. For example, is "low energy" another term for "you're pregnant, which is causing the problem”? It would not be unusual for a clever attorney to twist words like that when working with someone in a protected class. So everything should be carefully laid out and explained to avoid these issues.
Once this has been accomplished, then you could proceed with termination. While I can’t guarantee you will not have liability, the counseling and documenting will help you defend your actions as legitimate and nondiscriminatory.
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