By: Joseph H. Laverty, Esq.

In a recent Iowa case, Ash v. Burim Aliu d/b/a Riverside Family Restaurant, Iowa Ct. App. No. 9-910/09-0114 (Jan. 22, 2010), the court found that the employer did not violate the law in refusing to rehire/return to work an employee out on maternity leave. In this case, the employer argued that the employee was performing poorly prior to going out on maternity leave which was the reason she was not rehired/returned to work: her recent pregnancy was not a part of the employer's decision-making process.

The Iowa Supreme Court has ruled that the Iowa Civil Rights Act protects women who are returning to work from maternity leave. Accordingly, employers cannot have a policy against allowing pregnant women to work during their pregnancy or not allow the pregnant employee to return to work because of her pregnancy, which is a prima facie violation of Iowa Code Section 216.6. However, just because a pregnant employee is in a protected category under the Iowa Civil Rights Act does not mean that an employer is obligated to return her to work after giving birth when employment was going to be terminated due to performance problems prior to maternity leave. If the employer has a legitimate, non-discriminatory reason for not returning the employee to work after her maternity leave, the Iowa courts will recognize such a decision as being non-discriminatory. Cases are reviewed on a case by case basis and the facts of each case will be closely scrutinized, so employers would be wise to be careful in this area of the law; however, this is a good case supporting an employer's right to terminate an employee who is in a protected class.

Questions? Please contact WS Shareholder and Senior Attorney Joseph H. Laverty at (563) 333-9102, or email jolaverty@wesselssherman.com.