Sofia Khaira is a distinguished specialist in diversity, equity, and inclusion with a profound focus on transforming talent management and workplace culture. As a key advisor in employment compliance, she has dedicated her career to helping organizations move beyond mere legal adherence toward creating truly equitable environments. Today, we sit down with her to explore the complex intersections of performance metrics and employee leave, the critical safeguards required under the Pregnant Workers Fairness Act, and the high-stakes legal risks involved when medical emergencies collide with termination decisions. Our conversation dives into the practical steps leadership must take to bridge the gap between corporate policy and the daily actions of middle management.
Managers sometimes cite “slow velocity” or project delays when an employee returns from bereavement or medical leave. How should HR evaluate these performance metrics to ensure they aren’t discriminatory, and what documentation is needed to separate legitimate output concerns from unlawful retaliation?
When an employee returns from a sensitive leave, such as the four weeks of bereavement leave or five days of sick leave seen in recent litigation, HR must apply a high level of scrutiny to any sudden drop in performance ratings. The first step is to conduct a comparative audit: did this employee meet all specific project milestones and attend required meetings prior to and immediately following their leave? If the “slow velocity” claim only appears after a pregnancy disclosure or medical absence, it often points to a bias where the manager is penalizing the worker for the time they were legally away. Documentation must include objective output data from both before and after the leave to see if the “delay” is actually just the absence itself, which cannot be used as a basis for a negative review. We look for “unachievable” milestones that were not present previously; if a worker with no prior performance issues suddenly fails to meet new, hyper-aggressive targets, it suggests the metrics were engineered to justify a predetermined termination.
When an employee discloses a high-risk pregnancy, what are the immediate steps for establishing reasonable accommodations under the Pregnant Workers Fairness Act? How can leadership prevent managers from “aggressively” increasing project milestones in a way that could be perceived as illegal pushback?
Under the Pregnant Workers Fairness Act, the moment a disclosure is made, the employer enters an interactive process to identify accommodations, which might include modified schedules or adjusted physical requirements if the pregnancy limits major life activities. To prevent “aggressive” milestone planning, leadership must implement a “freeze and review” policy where any significant change in a pregnant employee’s workload must be vetted by a third party or HR. We have seen cases where managers demand weekly milestone planning and then increase the intensity of those requirements specifically after a high-risk disclosure. This behavior creates a paper trail of retaliation rather than a supportive environment for the employee. Leadership needs to signal that “project velocity” cannot be maintained at the expense of an employee’s health, and managers should be held accountable if they deviate from established project scopes only after a pregnancy is announced.
If an employee is terminated within 24 hours of beginning an FMLA leave, what specific legal risks does the organization face regarding “interference”? How should a company handle a pending termination if the worker unexpectedly suffers a medical emergency or fall that triggers protected leave?
Terminating an employee within 24 hours of them taking FMLA leave, especially following a medical emergency like a fall, creates a nearly insurmountable presumption of “interference” and retaliation. The legal risk here is extreme because the timing alone suggests the company fired the worker to avoid their obligations under federal and state law. If a termination was already “pending” due to legitimate reasons, the company must have rock-solid, dated evidence that the decision was finalized and documented before the medical emergency occurred. Even then, proceeding with the firing the moment a worker goes on leave is a high-risk maneuver that often leads to costly lawsuits. In these situations, the safest and most ethical path is to pause the action, allow the leave to proceed, and consult legal counsel to ensure the termination is truly independent of the medical event.
Internal complaints often reveal a disconnect between corporate non-retaliation policies and the behavior of middle managers. What metrics can executives track to identify managers who treat pregnant employees differently, and what training protocols actually change behavior?
Executives should track “rating volatility,” which looks for sharp declines in performance scores specifically following life events like pregnancy disclosures or bereavement leave. If a manager has a pattern of “harshly criticizing” employees who previously had no issues, that is a massive red flag that requires immediate intervention. Training protocols must move beyond generic videos and include scenario-based sessions that simulate the pressure of project delays versus the legal right to leave. We need to teach managers that saying an employee’s absence caused a “project delay” is not a neutral observation—it is often an admission of discrimination. By analyzing internal memos and the frequency of “additional, specific” milestones assigned to pregnant workers, leadership can catch bias before it results in a lawsuit or an internal memo claiming the environment is too hostile to return to.
What is your forecast for pregnancy discrimination litigation?
I expect a significant surge in litigation as the EEOC continues to make pregnancy bias a high-priority enforcement item, bolstered by the newer protections of the Pregnant Workers Fairness Act. We are seeing more employees who are willing to speak out against “angry messages” or retaliatory “milestone planning,” and courts are becoming less tolerant of companies that hide behind performance metrics to justify firing pregnant staff. Organizations that fail to bridge the gap between their public-facing non-retaliation policies and the private behavior of their supervisors will face increasingly expensive settlements and public relations crises. My forecast is that “slow velocity” will no longer be an acceptable excuse for penalizing those who take protected leave, as transparency in performance tracking becomes a legal necessity.
