Although I eagerly anticipate the arrival of a baby due to be born in the Nowak family within the next couple of weeks [number 4…somebody help me!], I assure you that my status as “expectant dad” is not clouding my objectivity regarding the rights of moms and dads in the workplace.
But the fact of the matter is this — a few employers apparently have made some rather foolish decisions lately when terminating the employment of an expectant parent, and it’s making the rest of us look like we don’t care much for moms and dads or, for that matter, the next generation.
Last month, I shared the story of Ena, whose employment was terminated one day before she would have been eligible for FMLA leave, which she then could have taken due to pregnancy complications.
Now, take a whiff of this one.
Ron was Vice President of Sales for an Ohio company that sold cleaning and janitorial supplies, among other things. He also was an expectant dad. On June 6, 2012, he requested permission to take June 11 through June 15 off because of an “unexpected appointment” for his pregnant wife. His boss, who doesn’t come off as the FMLA-savvy type, told him he could use paid leave to cover June 11 and 12, but “if he chose to take [July 14 and 15] off, they will be unpaid.”
Ron then sought out Human Resources to obtain the necessary FMLA paperwork for his leave of absence. By June 15, however, Ron was terminated, apparently for poor performance.
Ron could not find an employment attorney fast enough. He did, they sued, and you can guess what happened next. You can read more here: Rice v. Kellermeyer
Insights for Employers
There are a lot of takeaways here:
- The Timing of a Termination Decision is Important no matter what you think the courts say. Every employment defense attorney (including yours truly) makes the argument that the timing of the employment decision alone is not sufficient to support a retaliation claim. This argument isn’t as persuasive to the courts as it once was, as the courts are allowing far more tenuously timed decisions to support employee claims. Take this court, for example, which said: “a close temporal proximity between the protected activity [request for leave] and the adverse employment action meets the low threshold of proof necessary to establish a prima facie case of retaliation.” In other words, you need to have some good facts on your side.
- When you terminate an employee shortly after they make a request for FMLA leave, please make sure you can back it up! Here, the employer argued that it terminated Ron because he was a poor performer. This reason, however, was undermined by: a) Ron’s relatively positive performance review (which stated, among other things, that Ron “is a valued member of [the company] and the skill set [Ron] exudes is a benefit to the company”); and b) the company president’s decision to entrust Ron with even more responsibility in the time leading up to his termination. Employers, let this case be a warning to you — before terminating an employee who has requested leave (whether he is an expectant dad or otherwise), it is critical that you have established some reliable level of well-documented progressive discipline prior to the decision.
- Be mindful of the new EEOC guidance regarding pregnancy discrimination. As I discussed in my post last week, with the publication of the EEOC’s new guidance, employers face even more scrutiny during the EEOC investigations of pregnancy discrimination claims. If we have not taken seriously the reasonable accommodation requests of expectant moms (and dads), including the need for leave from the job to attend to pregnancy-related issues, we must do so now. Otherwise, a whole lot of liability awaits us right around the corner.
- Moms and Dads make for sympathetic plaintiffs. If you frankly could take or leave child bearers and expectant parents, and money is your bottom line, it still makes eminent business sense to treat these employees fairly when they request time off to attend to pregnancy-related issues. Just ask the employer here.