Dismissal During Or Shortly After Family
It is not necessarily unlawful to dismiss an employee while they are on maternity, paternity, adoption or shared parental leave. However, the dismissal must be for a fair reason and following a fair procedure.
If you are dismissed because you took or intended to take family-related leave, or for a reason connected to your leave, you may have a claim for automatic unfair dismissal and discrimination.
While on family-related leave, you have the right to return to your old job. Your rights differ slightly depending on the type and length of leave taken. If you are not given your old job back, this may amount to unfair dismissal and discrimination.
Know Your Federal Rights
The Pregnancy Discrimination Act prohibits an employer with 15 or more employees from discriminating against a pregnant employee, including in hiring, firing, pay, job assignments, promotions, training and benefits such as leave and health insurance.
A supervisor cannot, for example, stop a pregnant woman from traveling to a conference out of purported concern for her health. The manager cannot deny a pregnant worker a promotion on the assumption that she will be less committed to her job. The supervisor cannot temporarily assign a pregnant worker to a less desirable job because of supposed concerns. All of this is illegal.
The law does not require an employer to accommodate a pregnant worker if the company is not already offering similar accommodations to other workers . The Americans With Disabilities Act requires the employer to provide a reasonable accommodation that allows the employee to do the job, but what that accommodation consists of more frequent breaks, for example, or a stool to sit on varies depending on the job and the nature of the disability. A pregnant worker may not receive the precise accommodation she had sought but the accommodation is expected to work reasonably for both employee and employer.
Talk To An Experienced Employment Attorney
file a Charge of Discrimination with the EEOCthree things you need to prove your employment discrimination caseWenzel Fenton Cabassa, P.A.free ebook on Wrongful Termination today
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Pregnancy Discrimination: The Basics
It is essential to understand the rights you have while pregnant before you begin to take legal action against your former employer. The first step is to identify what is going on. If you have been terminated from a job because you are pregnant, this is classified as a type of sex discrimination called pregnancy discrimination. This covers people who are pregnant, are within childbearing years, and employees who have childbearing sex organs. This means that an employer may not neglect to hire a person who is pregnant or may become pregnant, pass up an employee who is pregnant or may become pregnant for a raise or advancement opportunity, or fire an employee for being pregnant.
What Should I Do First
Contacting an attorney at our office, The Armstrong Law Firm, is always a great first step to protecting yourself when you suspect pregnancy discrimination took place. There are some other steps you can take as well preserve your rights:
Get Information About Your Rights
The California Department of Fair Employment and Housing and the U.S. Equal Employment Opportunity Commission are the state and federal administrative agencies that regulate and enforce discrimination issues. They offer some valuable resources that provide an overview of individual rights and how claims are processed.
Gather Information And Evidence You Have Of Discrimination
If you have the means to gather information that was communicated to you regarding why you were fired, do so. If you recall conversations with your supervisor or manager that involve pointed statements about your pregnancy, try to write down what was said, when it was said and the names of any others who may be able to validate your claim.
Direct evidence that proves your manager said you were being let go because of your pregnancy is valuable, but so is circumstantial evidence. Circumstantial evidence shows that your termination somehow went against the typical procedures, that the firing did not align with common business practices/strategy or that employer behaviors somehow changed once your employer was informed of your pregnancy.
File A Charge With The EEOC Or A Complaint With The DFEH
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Next Step Contact The Local Human Rights Council
In Canada, there is always another step you can take if going to a lawyer isnt an option and if the HR department and the labor board cant or refuse to do anything, and thats to go to the human rights council which oversees your jurisdiction.
A human rights council will be able to put even more pressure on your employer than virtually anyone else. This is because for a company, getting a blip on your record for a human rights violation is no small issue and it can severely affect how a company is viewed by the public. In the end this can greatly affect how successful a company is.
Not only that, but a human rights council also has the power to file formal lawsuits which can reach the Supreme Court of Canada, and that is something that your employer will surely want to avoid!
Talk With An Attorney As Soon As Possible
Every case is different, so make sure you work with a law firm that will take the time to answer your questions, investigate your unique circumstances and pursue justice to the full extent possible.
Contact our offices in San Francisco, Oakland, and Sausalito to arrange a consultation. We can be reached online or by telephone at . We serve clients in Marin County and the entire bay area including San Jose.
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Fair Dismissal The Basics
In order to fairly dismiss any employee, regardless of their pregnancy or family leave status, employers must have a fair reason and use a fair and reasonable procedure.
If an employer does not have a fair reason or does not use a fair and reasonable procedure, or the dismissal is considered automatically unfair, then the affected employee has a claim for unfair dismissal.
For more information on:
- What is a fair reason for dismissal?
- What is a full and fair procedure?
- What is automatic unfair dismissal?
see our article on Unfair dismissal.
The Federal Pregnancy Discrimination Act
The Pregnancy Discrimination Act covers employers that have 15 or more employees. The covered employers are prohibited from discriminating against workers based on childbirth, pregnancy or related medical conditions. The act covers all aspects of employment, including hiring pregnant applicants or treating pregnant workers differently. Employers are not allowed to refuse to hire an applicant simply because she is pregnant. They may also not fire someone or discipline her for becoming pregnant.
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Fired For Being Pregnant In New Jersey
If you were fired for being pregnant in New Jersey, you may have the grounds to file a legal claim against your former employer. You have rights under both federal and state law to be protected against pregnancy discrimination. An attorney at Swartz Swidler may advise you about your rights and how to handle your case.
Leaving Work For Childbirth & Bonding
The U.S. is one of the only countries in the world with no law guaranteeing women the right to paid leave for childbirth. However, you may have the right to take unpaid leave for childbirth and return to your job.
Leave for Childbirth and Adoption
The law may protect your job while you are taking leave after childbirth or adoption.
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Proving Pregnancy Discrimination: What To Do If You Suspect You Were Fired Due To Being Pregnant
Experiencing pregnancy and birth at any time during a career is a huge issue for women in workplaces across America. Pregnancies are normally celebratory events, even among working women, but due to prevailing attitudes that pregnancies and work are at odds, some employers can engage in illegal decision-making in response to them.
When this happens, women workers need to know how to handle employment rights violations, especially when an employee suspects that pregnancy is the true reason behind a termination notice.
State Level Protection Against Pregnancy Discrimination
While federal pregnancy discrimination law pertains to companies with 15 or more employees in the workplace, state laws often allow women workers with jobs at smaller companies to file claims of pregnancy discrimination. Some some states have had laws on the books banning pregnancy discrimination at work since the 1970s, while other states have only recently added legislation to address the issue. These include New Jersey, Rhode Island and West Virginia with pregnancy discrimination laws passed in 2014.
The process for filing a discrimination charge is slightly different under state laws, but the EEOC is still involved. Employees must first contact their state EEO department and file formal charges there before proceeding to court. The term for filing is also different in comparison to federal pregnancy discrimination claims. Federal claims must be filed within 180 days of the last discrimination incident, while state claims generally have up to 300 days.
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Contact California Employment Counsel Apc
Discrimination cases are some of the most heartbreaking and emotionally difficult legal cases that exist. It is never easy to discover that you have been treated differently because of a condition or trait beyond your control. One of the fundamental rights of all people in the United States is the right to begin and nurture a family. Though this may look different to different people, there is absolutely no reason why beginning a family should risk your job, professional reputation, or income security. At California Employment Counsel, we understand these basic rights, and we empathize with the emotional difficulty of having them stripped from you. This is why we work diligently to defend those who have been discriminated against in the workplace and strive to enforce the laws that make our countrys workplaces equitable. We approach every case with kindness, empathy, and patience, knowing that what you are experiencing is difficult. In the courtroom, we are thorough and ruthless in our pursuit to defend your rights and your family from illegal discrimination.
If you believe that you have been fired because of your pregnancy, there is no time to waste. Contact California Employment Counsel today to begin your fight to protect your family.
Get Support From Your Coworkers
Another thing that you can do if youre at risk of being fired for being pregnant, or have actually already been fired for pregnancy, is to go to your fellow coworkers and get their support.
Put it this way, from a legal standpoint theres not much that your coworkers can do to help you out unless one of them happens to be a lawyer on the side, but they might be able to petition to the upper levels of management and let them know how the whole office feels about your situation.
Aim for coworker solidarity
Theres something else that your coworkers can do, and if youre good enough friends with them and generally have a good relationship with the rest of your coworkers, then they just might be able and willing to do this for you.
If you are at risk of being fired for being pregnant then you could get your fellow employees to boycott the business. In other words, if you get fired, then everybody else goes on strike or will quit. The threat of having every employee leave overnight will probably be enough to make your boss rethink their decision about firing you. Keep in mind though this is a calculated risk with a certain propensity to backfire, if you go this route then tread lightly.
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Im Pregnant Or On Family
If you are on family-related leave, your employer may take disciplinary action against you as long as they are not taking action because you are pregnant or on family-related leave.
The disciplinary action must be for a fair reason. Usually disciplinary action is taken where there has been alleged misconduct or poor performance. The reasons for the alleged misconduct or poor performance must not be due to your pregnancy or family-related leave.
Your employer must also follow a fair procedure, notify you in writing of the alleged misconduct, and give you an opportunity to put in your case. Your employer must also make a fair decision. Acas has detailed advice on what constitutes a full and fair procedure.
Going through a disciplinary procedure can be very stressful, so it is not unreasonable for you to have concerns about your mental health and impacts on your pregnancy or post-partum depression.
If you are pregnant or on family-related leave and facing disciplinary action, you should seek advice. If you are a member of a union, they should also provide you with support.
Get A Lawyer And File A Lawsuit
So, if nobody at the office or your given place of work will listen to your reasonable requests and you are still being fired for being pregnant, or have already been fired, then you may want to get the law on your side. Technically the law already is on your side, you just have to utilize it.
The law in most countries is very clear and it is designed to protect women and their rights during and after pregnancy. This is something that lawyers know all too well, after all, thats their job.
You may not see any retribution for months though
Now, a lawyer might not be the first choice seeing as most lawyers are quite expensive, but they will certainly be able to get the job done if your case demands legal action. You may even be able to find a lawyer that will work pro bono or will take a pay cut if you win your case.
In any case, a lawyer will definitely be able to help you. Maybe they wont be able to help you keep your job or get it back, but if your case warrants, they may be able to get you a large cash settlement which will be more than enough to get you through until you can find a new job.
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Making Pregnant Employees Redundant
It is possible to make a pregnant employee redundant, or to make someone redundant while they are on maternity leave however, again, pregnant employees have rights and protections that you will need to be aware of.
You must warn all employees of a potential redundancy situation, including those who are on maternity leave or off work with a pregnancy-related sickness, and how it may impact them. Failure to do so comes with a heavy price it is likely that it would render the process unfair.
When selecting people for redundancy, you should create a scoring criteria employees in the redundancy pool will receive scores against this list and the employee with the lowest score will be selected for redundancy. It is important to make sure that all criteria are fair and non-discriminatory. This means you cannot select an employee based on the fact they are pregnant, on maternity leave or are exercising their statutory rights. You must also take care when considering an employees absence record absences due to maternity leave or pregnancy should not be counted. Again, you should think about the impact that pregnancy may have had on their performance.
Remember, if an employee has been continuously employed for two years, they will have the right to statutory redundancy pay.
Pregnancy Discrimination & Harassment
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision . The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
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File An Ei Claim & Look For A New Job
This is not an ideal solution seeing as filing an Employment Insurance claim means that you have officially lost your job and have given up on getting it back, however, it is better than nothing at the end of the day. In Canada, filing a claim for employment insurance is better than nothing because at least you will be receiving some money while youre taking care of your baby and doing some crucial bonding with your little bundle of joy.
No, it isnt right that you have lost your job. The fact of the matter is that you will need money to survive and take care of the baby, employment insurance is a pretty good way to do that. It should be noted though that you must have worked at least 600 hours at your job and you must have paid into EI to get the benefits.
Finally, after all of this, if nothing else good has come of the whole ordeal, such as you actually keeping your job, then it may be time to look for a new job. Hey, you dont want to work for someone who is sexist and discriminatory towards pregnant women anyway! What if you want to have a second child and youre still working at the same place? Move on, and get a job with employers that will respect your needs, a womans needs.
