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Can I fire a pregnant woman?

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thessler

Junior Member
What is the name of your state (only U.S. law)? Colorado

We have a pregnant employee who is an auto body estimator. Her job requires her to be able to look under vehicles for damage and sometimes get down on the ground. She can no longer do this so is not able to perform her job adequately. We are a small company so we need her to be able to perform as she has in the past. We have been unhappy with her over the past few months and have talked to her about her job not being done right but were worried if we let her go now she'll blame it on her pregnancy.:confused:

Can we fire her for not being able to do her job anymore?

Because we are small she doesn't qualify for FMLA and Colorado doesn't have a maternity law. How much time do we have to give her for maternity leave?

Because of our size we cannot afford to go without an estimator while she's on maternity leave. Can we replace her and fire her while she's on maternity leave?
 


cbg

I'm a Northern Girl
When you say a small company, how small are you talking about? I mean EXACTLY how many employees. It makes a difference to the answer.
 

thessler

Junior Member
We have 12 employees and we haven't been happy with her over the past few months (before we found out she was pregnant).
 

thessler

Junior Member
Also, a temp is not an option because we need someone who knows how to estimate vehicle damage already and the rules of the insurance companies.
 

cbg

I'm a Northern Girl
You could probably get away with it under Federal law, but you'd be on extremely thin ice as far as state law goes.

If you go this route, you need to make absolutely sure that you put it on the basis of past performance and not inability to perform currently.

One final question; how long has it been since she announced her pregnancy? And has her performance improved at all since she was counseled about it?
 

thessler

Junior Member
she just announced her pregnancy 3 weeks ago.

Nothing has changed as far as her performance even though she has been addressed on the same items several times. In fact, since she announced her pregnancy it's gotten worse. We are hoping she'll decide to become a stay home mom, but can't bank on that. We are starting to write her up formally now so we have more ground to stand on if we decide to let her go based on performance issues.
 

Isis1

Senior Member
she just announced her pregnancy 3 weeks ago.

Nothing has changed as far as her performance even though she has been addressed on the same items several times. In fact, since she announced her pregnancy it's gotten worse. We are hoping she'll decide to become a stay home mom, but can't bank on that. We are starting to write her up formally now so we have more ground to stand on if we decide to let her go based on performance issues.
how about just getting a job that she can handle physically? why does she automatically have to be a stay at home mom? :rolleyes:

if you don't watch how you word stuff, then it CAN be construed as discrimination against her disability.
 

thessler

Junior Member
I apologize for wording it that way, it was never meant as a discriminatory remark. I have no problem with working mothers and am one myself. I wouldn't view pregnancy as a disability though.
 

Isis1

Senior Member
I apologize for wording it that way, it was never meant as a discriminatory remark. I have no problem with working mothers and am one myself. I wouldn't view pregnancy as a disability though.
the law does. and that is what matters in this instance.;)
 

cbg

I'm a Northern Girl
Actually, the law does not. Pregnancy is NOT considered a disabilty under the ADA. And the ADA does not apply since there are not 15 employees overall, even if it did.

The Pregnancy Discrimination Act (which also does not apply here since there are not 15 employees) says that a pregnant woman has to be treated the same as if she were not pregnant. She cannot be discriminated against because of her pregnancy - but she does not get special privileges either, and the employer is not required to accept substandard work.

Where it gets complicated in this situation is that under state law, all employers are covered under discrimination laws regardless of size, and pregnancy is protected under state as well as Federal discrimination laws. However, if there is a DOCUMENTED record of her poor performance dating prior to the announcement of her pregnancy, and if there is a DOCUMENTED record that her performance has not improved despite counseling, and if the employer is extremely careful to mention ONLY her performance and not mention her inability to do her job due to pregnancy, the employer should be able to defend a pregnancy discrimination claim.
 

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