How to Deal

Can a Company Lay Off a Pregnant Worker?

By Lily Garcia
Special to
Thursday, October 11, 2007; 12:00 AM

I'd only been with my former employer for eight months, before giving birth six weeks early. At the time, I didn't qualify for FMLA benefits and was eventually laid off. I was then told that if an open position were to become available, I could come back as a new hire. Is the company allowed to do that?

To qualify for maternity leave protected under the Family and Medical Leave Act (FMLA), you must have worked for an employer for at least 12 months. If you haven't met that requirement, then you are not protected by that law.

You should be aware, however, that pregnancy discrimination is prohibited sex discrimination under Title VII of the Civil Rights Act of 1964. Under Title VII, your company cannot treat you any differently from other temporarily disabled employees who aren't pregnant. If it is the company's practice, for example, to allow temporarily disabled employees to take paid or unpaid leave regardless of the requirements of the FMLA, then you are entitled to equivalent treatment. Additionally, if your company has a practice of holding the jobs of temporarily disabled employees open for a certain period of time, then you can't be treated any less favorably under the law. It does not matter for purposes of Title VII, however, how long you've worked there.

The Equal Employment Opportunity Commission (EEOC), which enforces Title VII, suggests that having a company-wide policy that does not allow less tenured workers time off for health conditions, may be problematic. It would unfairly impact women who become pregnant.

In short, you aren't out of options. Assuming you want your job back, ask for it. If you get nowhere, ask your former employer's HR department what the company's history has been when dealing with employees who have to miss work because of sickness or being temporarily disabled.

If you still don't receive a satisfactory response, contact your local EEOC field office for further assistance. You might also want to research your state's family leave laws, as you may qualify for more comprehensive protections.

Join Lily Garcia on Tuesday, Oct. 16 at 11 a.m. ET for How to Deal Live.

Lily Garcia has offered employment law and human resources advice to companies of all sizes for 10 years. To submit a question, e-mail We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.

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