Some of the toughest discrimination claims involve pregnancy. A recent Florida case, Williams v. Crown Liquors, in which the court made the company go to a jury trial, helps to illustrate some of the potential pitfalls. The employee was the human resources director for the company and had been employed almost five years when she learned she was pregnant. About four months into the pregnancy, the employee shared the information with friends, family, and the company. Soon afterward, her doctor suggested she consider working from home due to concerns about high blood pressure and issues with her ability to commute more than an hour one way to work.The employee and company management met to discuss the situation and initially agreed that the employee would be allowed to work mostly from home. Instead of starting to work from home, she continued to physically report to work; the next month, the problems with her blood pressure got worse, and she was ordered to take bed rest.

At this point, things got complicated, and the employee and company have different versions of what happened. For instance, it is not clear whether she might have been able to do some work from home during the pregnancy. It is clear that after the doctor’s visit, the employee briefly went into her office to inform her staff about the situation. While there, she saw an invoice indicating the company had sought legal advice regarding her situation. She assumed she had been fired, but she also applied for FMLA. Because the employee had approximately four months left in the pregnancy, it did not appear she would be able to return to work once FMLA was exhausted. The employee argued she had access to other types of leave and that it was possible she would return to work before using all of it. Her claim is that she was terminated because of the pregnancy. In any event, during the first month of FMLA, the company hired an acting human resources director, and the employee was ultimately terminated.

In theory, while pregnancy has some special protections, such as FMLA, companies are supposed to be able to treat pregnant employees in the same manner as other employees with similar limitations. For instance, assuming FMLA or similar state protections do not apply, a company can terminate a pregnant employee for violations of its attendance policy, even if those absences are due to the pregnancy. The reality, however, can pose difficult decisions, particularly because it is often hard for fact-finders to separate the attendance violations from the pregnancy. Similarly, because FMLA does protect pregnancy-related absences, it can make it more difficult to explain why a pregnant employee is not meeting performance expectations even when the protected absences are not considered. In short, while pregnancy does not provide a “get out of jail” card that excuses poor performance, companies should be extremely cautious with discipline or termination situations that involve pregnant employees. Companies also should consider whether or not they should have separate pregnancy leave policies, apart from other types of leave.