Is it legal to fire a person on authorized maternity leave and replace her with a new hire?

 Posted 08-04-2010

Ann Kiernan replies:

The answer depends on the particular facts involved. Here are a couple of possibilities:

  1. If the woman is eligible for FMLA leave, she has the right to return to her job (or an equivalent). Replacing her with a new hire would violate federal law, unless the employer can prove that the woman would have been terminated anyway, even if she had not been on leave. The only cases I am aware of where the employer has met its burden of proof are those where economic conditions have compelled a reduction in force, which includes workers out on FMLA leave, or where, while the worker is out on leave, the employer has uncovers evidence of gross misconduct.
  2. If the woman is not eligible for FMLA leave (or a state law equivalent), you can lay off or terminate her, as long as you have objective, verifiable documentation of your legitimate business reasons for selecting the particular employee. Firing a woman because she is pregnant would violate state and federal discrimination law.


Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.