Charlie Longbrief had just turned off his computer to end his day when the phone rang.  It was John Grains.  John owns the local grain elevator in Hometown, Iowa and Charlie has been his business lawyer for several years.

"Charlie, I’ve got a problem,"  he said. 

"Tell me about it," Charlie said.

"Well, I need to fire Nancy in my accounting department.  She just isn’t getting the job done.  She is late for work.  She is lazy and never gets her work done on time.  Nancy makes mistakes.  She is one of the worst employees I have.  I just can’t take it anymore."

"How old is she?  Is she a minority?  How long has she worked for you?", Charlie asked.

"She’s 25 and white.  She has worked for us for six months but you also probably need to know that she is eight months pregnant.  I knew she was pregnant when I hired her.   What do you think? Can I get rid of her?"

Charlie paused, leaned back in his chair and thought for a little bit.   "Have you conducted any evaluations?"

"Actually, yes.  We gave her a review after three months on the job and pointed out some very specific instances where she needed improvement consistent with her job description.  I included the dates, times and specific examples of conduct.  I suggested some ways she could improve.   I gave her a chance to respond to our comments and I told her we would review her again at the six month mark to see if she had improved.  I indicated that if she had not improved by that date I would need to let her go.  I documented the review in writing, including her responses, and asked her to sign the review, " explained John.

"Any improvement?" asked Charlie.

"Very little.  She isn’t late for work as much but the work product has not improved at all.  Just last week she missed a deadline for a very important meeting. I hate to fire someone who is eight months pregnant but I don’t feel like I have any choice," he said. 

Charlie advised, "Well, the fact you have conducted an effective employee evaluation and followed it up in writing is extremely helpful.  It sounds like your performance expectations are consistent with your job description.   Without the evaluation the decision to fire her could be much more difficult because of her pregnancy.  A plaintiffs’ attorney could look at this suspiciously because of her pregnancy.   Why don’t you send me a copy of the evaluation and her job description but my initial reaction is you likely have a reasonable basis for her termination.  The key is whether you have demonstrated legitimate business reasons for her termination."

* This is an educational hypothetical.  Please consult your employment lawyer for specific advice in your own situation.   Slight changes in factual situations may require a material variance in applicable advice.  Read our Disclaimer.