It would be nice to think today’s modern and advanced employers realized that the benefits of employing a diverse base of motivated individuals can be quite far-reaching, but pregnancy discrimination cases are abundant – and the U.S. Equal Employment Opportunity Commission (EEOC) and California’s Department of Fair Employment and Housing exists for a reason.
In California, if your employer has five or more employees, you are entitled to rights and protections under California state law in the event of pregnancy, childbirth, loss of pregnancy, and related physical and mental conditions. These rights and protections include the right to reasonable accommodations and the right to time off from work. It is illegal for employers to fire, refuse to hire, bar, harass, discharge, or otherwise discriminate against someone because of their pregnancy, childbirth, or related condition. (Cal. Gov’t Code § 12945; Cal. Code Regs. tit. 2, § 11035).
An employer covered by these rules can be, but is not limited to, one or more individuals, partnerships, corporations, companies, labor organizations, apprentice training programs, employment agencies, or licensing boards. (Cal. Gov’t Code § 12925; Cal. Code Regs. tit. 2, § 11035(e)).
Let’s look at five ways to detect pregnancy discrimination in the workplace and how to take appropriate action.
Five Specific Examples of Pregnancy Discrimination
- Prior to hiring
It is illegal for an employer (or potential employer) to discriminate against a woman by asking for the number of children she has and whether she’s planning on having any more. If the applicant indicates that she is pregnant at the time, an employer may not refuse to hire her based solely on this fact. Simply asking her to reapply after she gives birth is pregnancy discrimination.
- Reasonable accommodations while pregnant
You may be entitled to accommodations if you have a pregnancy disability. Accommodations are changes to the work environment that allow you to perform your job. Examples of changes or accommodations are:
- Modified work duties to be less strenuous. (Cal. Code Regs. tit. 2, §§ 11040 & 11035(s)(2)).
- Use of a stool or chair while performing work duties. (Cal. Code Regs. tit. 2, §§ 11040 & 11035(s)(4)).
- Temporary transfer to a less strenuous or hazardous job offered by your employer. (Cal. Code Regs. tit. 2, § 11041).
- Longer or more frequent breaks. (Cal. Code Regs. tit. 2, § 11035(s)(5)).
- Private lactation accommodations. (Cal. Code Regs. tit. 2, § 11035(s)(5)).
- Pregnancy Disability Leave (“PDL”). (Cal. Code Regs. tit. 2, § 11042.
Additional leave as a reasonable accommodation at the end of PDL.
- Firing due to current pregnancy/pregnancy-related conditions
It is illegal for your employer to fire you because you are pregnant or because you are taking pregnancy disability leave. Employers are otherwise required by law to reinstate you to the same job you had before taking leave. In some situations, you may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job you had before taking PDL. (Cal. Gov’t Code § 12945; Cal. Code Regs. tit. 2, § 11043). Be aware that pregnancy protections do not insulate you from employment actions taken by the employer for legitimate business reasons, such as layoffs or plant closures.
- The employee requires ongoing medical care
Pregnancy Disability Leave, or PDL, is leave from work to accommodate employees with a pregnancy disability. Your health care provider will recommend how long you need to take leave from work, but you are entitled to up to four months of PDL per pregnancy. (Cal. Code Regs. tit. 2, § 11042). This leave is in addition to any other leave for which you may be eligible under the provisions of the Fair Employment and Housing Act, California Medical Leave Act, other state laws, and local ordinances, your employer’s leave policies. If your employer has a policy of providing more than four months of leave for other disabilities, then your employer must also provide you with the same leave, if required by your pregnancy-related disability.
- Stalling out the employee’s advancement opportunities
All things equal, an employer may not deny a woman the right to a similar or the same position upon returning from a pregnancy-related leave. Pregnant women may not be treated differently than any other individual who has a temporary disability or medical condition and firing or demoting a pregnant employee, or otherwise denying access to promotion opportunities based solely on the pregnancy is illegal.
Which Laws Cover Pregnancy Discrimination?
There are several important pieces of legislation that provide protections for pregnant individuals, or those who have been pregnant or may become pregnant. Here are some of the main laws and acts that provide protection today:
- California’s Fair Employment and Housing Act (“FEHA”)’
California’s Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating against any employee for becoming pregnant or requesting leave associated with pregnancy. If the employer has had five or more full-time employees FEHA over the prior year, FEHA’s protections apply.
- California’s Pregnancy Disability Leave Law (“PDLL”)
The California Pregnancy Disability Leave Law (“PDLL”) requires employers to provide up to four months of leave for employees actually “disabled” by pregnancy or pregnancy-related conditions. The PDLL provides pregnancy leave even when the employer’s policies do not grant leave for other short-term disabilities. In other words, in California, pregnant women have more protection regarding their working conditions than do other workers, which reflects California’s policy of protecting families and especially, women and their babies.
The Family and Medical Leave Act of 1993 guarantees both male and female employees’ specific rights around pregnancy, childbirth or adoption-related time-off from work. The FMLA provides job protections for those taking leave to care for a child, adopt a child, or take care of a seriously ill immediate family member.
- California’s Family Rights Act (“CFRA”)
After having a child the mother may be entitled to an additional 12-weeks of leave for that reason under the California Family Rights Act (“CFRA”) which is California’s state version of the Family and Medical Leave Act (“FMLA”) Whether leave is available under CFRA leave for birth of a child depends on the type of employer (must employ more than 50 employees within a seventy five mile radius), the number of hours worked by the employee in the past year preceding the first requested date of CFRA leave or other pregnancy disability leave (1250 hours), and the duration of the employment (must have worked more than one year for the employer).
If you feel you or someone you know has been unfairly treated in response to a pregnancy-related concern, make sure you seek the knowledgeable counsel of a qualified employment law attorney for your state of residence. For more information on pregnancy discrimination concerns, contact the professional, award-winning law firm of Feldman Browne Olivares today.