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 some issues with her overall behavior and attitude. Shortly after this was starting to become a problem, she announced she was pregnant. I recently had a conversation with her about the problems, 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 you’re in and the number of employees you have. This is because whether or not there are protections for pregnant employees depends on those two factors. For example, if you reside in Georgia, the protections don’t specifically kick in until you have 15-plus employees. 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.
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That's not to say that small employers who are below a particular threshold are free and clear of all potential claims and lawsuits. It can still happen; it's just a little rarer and with a more difficult path for the alleged victim.
To be safe, I recommend you conduct more counseling with this employee and establish documentation before termination. This should occur at least once, if not several times, before termination. This is not only good management practices, but it will also help you in the event of a claim or lawsuit happening post-termination.
In these discussions and documenting, you need to have clear, objective, job-related issues to address. 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 problem and illustrate it with examples and specifics. It's the only way someone will know how to improve. Plus, it helps ensure the communication is not misconstrued and twisted. For example, is "low energy" another term for "you're pregnant, which is causing the problem”? It wouldn't be unusual for a clever attorney to twist phrases and 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 won’t have liability, the counseling and documenting will help you defend your actions as legitimate and nondiscriminatory.