An employment lawyer explains whether you can legally be fired while you're on parental leave

You’re taking your parental leave, just settling in with the newest addition to the family, and then the unthinkable happens — you find out that you no longer have a job to return to.

This scenario, while jarring to think about, isn’t unheard of, and perhaps more surprisingly, it’s perfectly legal.

When we heard the news that this may have recently happened to Michelle Tan, who was editor in chief of Seventeen Magazine before she was reportedly let go while on maternity leave (Business Insider reached out to Hearst for confirmation but has not heard back yet), it left us wondering: Can you legally get fired while on maternity or paternity leave?

So we asked Ryan Park, a lawyer with law firm Boies, Schiller & Flexner LLP, in Washington, DC. Park has a background in employment law and last year represented CNN reporter Josh Levs in the settlement of his suit alleging CNN’s paternal leave policy discriminated based on gender.

According to Park, you can get fired while you’re on leave, but there are a few caveats.

He points to a wide array of laws that protect employees from discrimination based on their parental status, including the Equal Protection Clause of the U.S. Constitution, Title VII of the Civil Rights Act, the Family and Medical Leave Act, and the Pregnancy Discrimination Act.

The first clause of the Pregnancy Discrimination Act, for example, specifies that Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”

“Under these and other laws, an employer can fire an employee while they are on parental leave or pregnant, but they cannot fire an employee because they are on parental leave or pregnant,” Park explains.

In other words, you can be fired for something you would have been fired for had you not been on leave, like if you committed a fireable offence, there were mass layoffs, or your department or job were being eliminated.

But Park notes that even if an employer comes up with a legitimate, non-discriminatory reason for letting someone go while they’re on leave, that action may still be illegal if the employer’s stated reason seems pretextual.

“One common way of showing that the employer’s stated reason is just a cover for its true, discriminatory motive is if similarly situated employees are treated differently,” Park says.

An example of this came in 2014, when the Supreme Court held that UPS could have violated the Pregnancy Discrimination Act when it told Peggy Young, a pregnant UPS driver, that she couldn’t work during her pregnancy, Park says.

“UPS has a reasonable policy that their drivers be able to lift 70 pounds, and Ms. Young could not during her pregnancy,” he explains. “But because UPS accommodated other, non-pregnant employees who could no longer lift 70 pounds, such as those who suffered a temporary on-the-job injury, the Court held that UPS’s treatment of Ms. Young may have been illegal.”

If you believe you have been the victim of discrimination, Park advises contacting an attorney.

“It is a daunting task to challenge an adverse employment action without legal representation because an employer can almost always come up with a legitimate-sounding rationale for its discrimination,” he says. Proving pretext is almost always the most important issue in an employment discrimination case.

Beyond this, he says you should also immediately contact and file a federal charge of discrimination with the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal antidiscrimination law, as well as any similar state or local agencies. Contacting the EEOC is not optional, he says, as you may lose your right to sue your employer for discrimination after a certain time.

Lastly, Park suggests meticulously documenting the circumstances surrounding the adverse employment action, prior work performance, and anything else that indicates the employer’s stated reasons for its actions may be suspect.

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