Mass layoffs including workers who are pregnant or on parental leave may seem unfair, but it's not illegal in the US — here's why

• Critics have slammed some companies for laying off US workers on parental leave in recent months.
• But staff on protected leave aren't immune from mass layoffs, labor lawyers told Insider.
• It can be discriminatory, but only if companies target employees because of their leave status.

Tech companies including Meta, Google, Amazon, Salesforce, and Microsoft have laid off tens of thousands of workers in the US over the past few months as they adapt to what they say is an uncertain economic outlook, with a potential recession looming. 

Some of the stories that have caught the most attention and outrage on sites such as LinkedIn, however, are those of workers whose companies laid them off while they were pregnant or on parental leave.

One former Google employee who, at the time, was 34-weeks pregnant, told Insider that she was unsettled by its decision to lay off "a woman at her last bit of pregnancy" and said it was "almost impossible for me to look for a job." Another was laid off hours before giving birth, while one married couple with a 4-month-old baby – including a mom on maternity leave – were both let go.

"I've seen too many pregnant women and moms on leave being laid off and it's just not right," one person commented on LinkedIn, while another said they thought it was "unethical and unprofessional" to fire someone who was about to have a baby.

But labor lawyers told Insider that people who are pregnant or on paid parental or medical leave aren't automatically protected from being let go in mass layoffs, including those currently sweeping the US.

Does FMLA protect workers from mass layoffs?

Under the Family and Medical Leave Act, or FMLA, workers at companies with at least 50 employees are eligible for 12 weeks of unpaid, job-protected leave for specified family and medical reasons.

This could include parental, foster, and adoption leave, people with a "serious health condition," and those with caring responsibilities. When they return to work after FMLA leave, the Department of Labor says that employees must return to the same job or one that is nearly identical,.

But their jobs aren't protected in the case of mass layoffs. What it boils down to is whether a company targets an employee because of their leave status, or whether the company would have let them go regardless.

"There's no law that says you can't fire somebody on maternity leave," Matthew Blit, an employment lawyer at Levine & Blit, told Insider. "You just can't fire them because they're on maternity leave." So if your whole team is let go and you happen to be on leave, there may be little you can do.

The FMLA is an "attempt to make sure that you are not disadvantaged because you needed to take leave for a protected reason," Joe Brennan, a law professor at Vermont Law and Graduate School, said.

"But the regulations from the Department of Labor state that an employee who is on leave doesn't have a greater right to benefits or employment than somebody who's not," Brennan said. "The goal of the statute is to treat somebody who's on leave the same way that they would treat somebody who isn't on leave."

What protections do pregnant workers have?

Workers have some protections if they think they were laid off because they were pregnant.

Under Title VII of the Civil Rights Act of 1964, workers can't be fired on the basis of being pregnant.

Meanwhile, under the Americans with Disabilities Act, employers can't discriminate against workers based on a disability, including one related to pregnancy, that requires a reasonable accommodation at work. A pregnant employee may be entitled to change their role in some way to account for their pregnancy such as, for example, moving from a more physical job to one with lighter duties.

But the FMLA doesn't protect workers from a mass layoff if the reason "has nothing to do with their pregnancy," Megan Carannante, a labor lawyer at Pullman & Comley, told Insider.

Proving you were laid off because you're pregnant or on FMLA is 'incredibly difficult,' but not impossible

Heather Hammond, an employment and human-resources lawyer at Gravel & Shea, said that when companies are conducting mass layoffs, managers typically use what they consider to be objective criteria, such as employees' tenure, attendance, and performance ranking to decide who to cut.

Brennan said that, for example, if the company decided to lay off the most recent hires or close a whole department, which included some staff on FMLA, this likely wouldn't be discrimination because the decision to let those staff members go was unrelated to their leave.

But companies need to look for unintentional bias, Hammond said. Brennan said that laying off people based on how many hours they'd worked over the past month, for example, would unfairly target people who had been on leave.

To prevail in a lawsuit, the worker who was pregnant or on parental leave would need to show that their status was a motivating factor for the company's decision to terminate them, Navruz Avloni, an employment and civil rights-lawyer at Avloni Law, told Insider. "Meeting this standard of proof is incredibly difficult to do in the context of a mass layoff," she said. "However, it has been done."