Pregnancy Discrimination In The Workplace

 

EXAMPLES OF PREGNANCY AND MATERNITY DISCRIMINATION AT WORK IN CALIFORNIA

 

  • FIRING A PREGNANT EMPLOYEE

 

There are many examples of gross pregnancy discrimination, such as when a manager fires a pregnant employee because he doesn’t think she will be able to do her job properly. But there are also less obvious examples. Although an employer may have honest intentions, such as being concerned about a pregnant employee’s safety on the job, it’s still illegal to discriminate against or fire a pregnant employee due to concerns for her well being. For example, even if a job requires lifting heavy objects or being around toxic chemicals, the safety of the employee and her unborn baby is ultimately up to her and her physician, not her boss or employer.

 

  • HARASSING AN EMPLOYEE FOR BEING PREGNANT

 

Frequent or occasional derogatory comments may constitute harassment —such as unwelcome and offensive jokes, insults, physical assaults or threats, and intimidation—that interferes with a pregnant employee or new mother’s work performance and develops into a hostile working environment is considered harassment.

 

This type of harassment can be carried out by a supervisor, co-worker, business partner, or even by clients or customers. For example, if a manager repeatedly makes offensive comments to his employee about how her pregnancy status is affecting her work performance in the hope that she will quit or transfer to a different position, this conduct is inappropriate and considered harassment.

 

  • REFUSING TO HIRE SOMEONE BECAUSE THEY ARE PREGNANT

 

If a new candidate is pregnant or could become pregnant in the future, an employer cannot refuse to hire her for those reasons (The same holds true for an employee who is applying for a promotion within the same company.) Many organizations attempt to justify this by saying that they only want to promote an employee who will be able to continue to work without any interruption.

 

The employer may want to avoid what it assumes will be an adverse economic impact or disruption of production in the workplace but that is illegal. An employer cannot make an assumption based on bias or stereotypes about how that particular employee will perform during her pregnancy or following the birth of her baby.

 

  • NOT PROVIDING REASONABLE ACCOMMODATIONS

 

If an employee has pregnancy-related health complications, she must receive the same treatment and accommodations as other employees who have other medical conditions.

 

For example, if an employee injured her neck and is offered a light-duty assignment until her neck heals, a pregnant worker must also be provided “reasonable accommodations” to perform light-duty work during her pregnancy. Just being pregnant is not enough to immediately offer accommodations, however, the employer may require a medical certification to justify accommodations.

 

A couple of examples include changing a pregnant worker’s work schedule if she has ongoing morning sickness or providing a comfortable chair for a pregnant worker at her workstation so that she’s not constantly on her feet. In these cases, the employees will likely have to provide a physician’s note to justify their medical conditions.

 

  • FIRING OR DISCRIMINATING AGAINST AN EMPLOYEE FOR PUMPING BREAST MILK

 

Under the Affordable Care Act, an employee who is a new mother must have the chance to pump breast milk at work in a safe and private location other than a bathroom. She must also be given reasonable time off during her work schedule to do so. In some cases, if a company has less than 50 employees, and it can prove that providing breaks or a private space would create “undue hardship” to the company, it may not be required to offer this arrangement to its pregnant employees.

 

  • FORCING AN EMPLOYEE TO TAKE TIME OFF, CHANGE POSITIONS, OR NOT CONSIDERING THEM FOR A PROMOTION

 

Although an employer may believe that a pregnant employee should take time off after giving birth or want to reassign the pregnant employee to a less stressful position, it’s illegal to do so. As long as the employee is able to perform her job duties, she must be allowed to do so.

 

Again, even though an employer may be under the impression that they are looking out for their employee's interest, employment decisions cannot be based on the assumption that the employee may not be willing or capable of carrying out the tasks of a particular job.

 

For example, an employer cannot refuse to promote an employee who has recently given birth just because the employer assumes she won’t be as committed to her new job responsibilities.

 

  • RESTRICTING PREGNANCY-RELATED MEDICAL LEAVE

 

Under the PDA, an employer is required to allow an employee who has physical limitations due to her recent pregnancy to take leave under the same terms and conditions as other employees who have an equivalent ability or inability to work.

 

For example, an employer cannot do the following:

 

A. Fire a pregnant employee for being on maternity leave if it’s covered by an employer’s sick leave policy. 

 

B. Require a pregnant employee who is limited by her pregnancy or related medical conditions to first use her sick leave before using other types of leave if an employer does not require the same of its other staff members who request leave for other medical conditions.

 

C. Force a pregnant employee to take a shorter leave than what an employer allows for medical or short-term disability leave. 

 

D. Stop a pregnant employee who is temporarily disabled because of her pregnancy from taking leave without pay; that is if an employer does not do the same for other employees who have the same ability or inability to perform the same duties.

 

In addition, an employer has to hold the pregnant employee’s job open for the same period of time they would for employees who are on sick or temporary disability leave.

 

Under the Family and Medical Leave Act (FMLA), an employer must allow the pregnant employee to return to her job or one that’s similar in pay, benefits, and other terms and conditions of employment.

 

  • RETALIATING AGAINST AN EMPLOYEE WHO FILES A COMPLAINT ABOUT PREGNANCY DISCRIMINATION IN THE WORKPLACE

 

During the past few years, the EEOC has reported that retaliation is the most common form of discrimination against pregnant employees. But it’s also common in the private sector because it’s a natural reaction for people to retaliate when they feel as though they’ve been affected.

 

However, it’s against the law for employers to demote, fire, harass, or otherwise “retaliate” against a pregnant employee for filing a pregnancy discrimination complaint, opposing pregnancy discrimination, or participating in a pregnancy discrimination proceeding.

 

An example would be a pregnant employee who was reported that she could no longer do her job, so she was subsequently demoted. After threatening to file a claim with the EEOC, she was then wrongfully fired because her employer argued that she misappropriated funds from the company when in reality she didn’t.

 

Although pregnancy discrimination is not easy to prove sometimes, it’s important to document the communications you had with your employer and colleagues and the resulting actions that were taken against you. This information will be extremely useful if you file a complaint with your company or pursue legal action.

 

To prove that you were discriminated against in the workplace, you may also have to exhibit that you were treated differently than your co-workers who had comparable qualifications and performance records.

Which Workers Receive Protections

Because of their pregnancy, California law specifies that it is illegal to discriminate against any person." However, the acts prohibited by this law are limited to the context of jobs. The effect is that only certain categories of employees can profit from the legal protections of California. 

Generally, such jobs fell into four categories: 

  • Traditional Workers. An employee works under the employer's command and supervision and has decided to hire the employer. 

  • Job Applicants. Everyone who files a written application with an employer is an applicant. If the employer does not have a written application form, if they show a particular desire to be considered for a particular job, an individual is an applicant. 

  • Temporary Workers ('Temps'). Temps are employees employed by an employer and assigned to work for a company by the agency. In certain cases, the temp may hold both the temp agency and the organization they run liable for unethical discrimination against pregnancy. 

  • Unpaid Interns. For pregnancy discrimination, California legislation was expanded in 2015 to handle unpaid interns the same as regular workers. 

There are of course, several caveats to these classifications. First, the anti-discrimination safeguards in California do not apply to under-qualified candidates. If they are less suitable for a job than the candidate eventually chosen, an employer has the right to refuse an applicant. 

Also, the anti-discrimination laws of California do not cover individuals hired by their parents, partners, or children. 

Finally, independent contractors and volunteers are typically not covered by the anti-discrimination laws of California. They are, however, protected by the provisions of California banning abuse based on pregnancy.

Is it a good idea to consult with a California employment lawyer?

There is no obligation for workers to have a lawyer to file a lawsuit against their employer. But getting an employment lawyer versed in California labor laws is always a good idea. 

The law can be complicated and very few cases are easy. Even if the facts are solid, an accomplished lawyer in the field of employment law can often help:

 

  • Collecting all legally appropriate data, applying the law in a convincing manner to the evidence and related facts, avoiding the strategic traps with which many non-lawyers are unfamiliar, and minimizing the employee's financial harm.

  • As employees deal with their legal cases without counsel, there is often a greater chance that they could fail or seriously hurt their case because of legal errors that a lawyer would have prevented. 

  • If the employer challenges the assertion of the employee, which sometimes happens, legal arguments may have to be made and proof will need to be presented. This may happen, often according to complicated legal processes, in court or with an administrative agency. Getting a lawyer who is comfortable with doing such things might be a good idea. 

  • In certain cases, lawyers are able to work for the part of the employee with no upfront costs. Instead by the end of the event, they would take a portion of what the employee wins. 

It is also likely that by the conclusion of the case, the employer would be expected to pay the workers legal fees. Some regulations put the blame on the employer for those expenses because it is easier for them to handle it.

 

So, while there is no legal obligation that an employee must have an attorney, if the employee has one, it may be much simpler to handle the claims process.

How to find an honest and reputable employment attorney?

The consequences of an employment discrimination can be permanent and affect your personal and professional life. You should immediately consult with a pre-screened Los Angeles attorney with experience in California employment law.

  1. You can submit a lawyer referral request online 24 hours a day. Free case review within 15 minutes.

  2. By chat, you'll be connected with a California lawyer within 5 minutes.

  3. By calling the 24-hour lawyer referral hotline at 1-661-310-7999

 

Additional Information: California Employees Must Report Pregnancy Discrimination In The Workplace.

>YOUR rights as a pregnant employee in California

Please read this notice if you are pregnant, have a related medical condition, or recover from childbirth. 
"California law protects workers from discrimination or abuse due to pregnancy, childbirth or any associated medical condition of an employee (referred to below as because of pregnancy"). California legislation also forbids employers from refusing or intervening with the job rights due to pregnancy. 


Your employer has a responsibility to: 

 

  • 1. React reasonably to your pregnancy, childbirth, or related medical needs (such as temporarily altering your job duties, supplying you with a stool or chair, or having more frequent breaks); 


  • 2. Move you to a less strenuous or unsafe role (where one is available) or tasks because of your pregnancy if medically required; and 


  • 3. Give you up to four months of Maternity Disability Leave (PDL) (the working days you will usually work in one-third of a year or 17 1/3 weeks) and return you to the same job if you are no longer impaired by your pregnancy or to a similar position in some cases. However, taking PDL does not safeguard you from non-leave-related work actions, such as a layoff. 

  •  

  • 4. Provide a fair amount of break time and use of a room or other place close to the employee's work area, as set out in the Labor Code, to express breast milk in private. 

For pregnancy disability leave

 

  • PDL is not for an automatic period, but for the period you are pregnancy-disabled. How much time you will need is decided by your health care provider. 


  • Once your employer has been told that you need to take PDL, if you request a written promise, your employer must guarantee in writing that you will return to work in your same role. Your employer may ask you to provide your health care provider with written medical certification to substantiate the need for your leave. 


  • PDL may include but additional or more regular breaks, time for prenatal or postnatal medical appointments, bed rest prescribed by the doctor, extreme morning sickness, gestational diabetes, hypertension caused by pregnancy, preeclampsia, miscarriage or failure or end of pregnancy recovery, and/or post-partum depression. 


  • PDL does not need to be taken at one time, but as requested by your health care provider, including intermittent leave or a shortened work schedule, it may be taken on an as-needed basis, all of which count against your right to leave for four months. 


  • Based on your company's rules for other medical leave, your leave will be paid or unpaid. Administered by the California Workforce Development Agency, you may also be eligible for state disability benefits or Paid Family Leave (PFL). 

  • You can use some holiday or other paid time off during your PDL at your discretion. 


  • During the PDL, your employer may request, or you may choose to use any available sick leave. 


  • During your PDL, your employer is expected to extend your community health plan at the same amount and under the same terms that coverage would have been provided if you had continued working for the duration of your leave. 


  • Any of your benefits and your seniority date may be affected by taking PDL; please contact your employer for information. 

  • If practicable, you must include inevitable events (such as the child's imminent birth or a scheduled medical procedure for yourself with at least 30 days' notice.

  •  

  • Please inform us at least orally of unforeseeable events as soon as you hear of the need to leave. Failure to comply with these notification rules is a justification for the extension of the required medical leave until you comply with this notice policy and will result in it being delayed. 

 

> Notice obligations as an employee

 

  • Give fair notice to your boss. You must give your employer ample notice for your employer to make suitable arrangements to receive a reasonable accommodation, obtain a move, or take PDL.

  •  

  • Sufficient information means an advance notice of 30 days if the need for appropriate accommodation, relocation, or PDL is foreseeable if an emergency or unforeseeable need occurs. 


  • Send Your Health Care Provider, a Written Medical Credential. Your employer may request you to supply a written medical certification from your health care provider of the medical necessity for your reasonable accommodation, transfer, or PDL, except in a medical emergency. 


  • If the need is an medical emergency, you must have this credential within the timeline that your employer demands, unless, considering the circumstances, it is not feasible for you to do so. 

  • Your diligent attempt at good faith.

  •  

  • For you to apply for the credential, your employer must have at least 15 calendar days. For a copy of a certified medical form to send to your health care provider to complete, see your employer. 

  • Please note that your employer might be justified in delaying your appropriate accommodation, transfer, or PDL if you fail to give your employer enough time, if your employer requires it, written medical certification of your medical needs.

 
ADDITIONAL RIGHTS UNDER CALIFORNIA FAMILY RIGHTS ACT  LEAVE (CFRA): 


If you have more than 12 months of employment and have worked at least 1,250 hours in the 12 months before the date you wish to begin your leave, you may also be entitled to additional privileges under the California Family Rights Act of 1993 (CFRA).

 

For the birth, the adoption, or foster care placement of your child or for your serious medical condition (not related to pregnancy) or that of your child, parent, or spouse, this leave can be up to 12 workweeks in 12 months.

 

While the law offers only unpaid leave, in some conditions, workers may choose, or employers can request the use of accrued paid leave while taking CFRA to leave. Please check the Employer's Notice on the availability of CFRA goes for more information on the availability of CFRA leave.

Find a Reputable Lawyer Now!

1000Attorneys.com is a 

California Bar Certified Lawyer

Lawyer Referral Service. 

 

Attorneys are pre-screened, monitored and certified in California Employment Law and pregnancy discrimination in the workplace. 

 

Lawyer referrals and personal legal consultations are FREE.

By submitting this form, you agree to 1000Attorneys.com's terms.

We respect your privacy.

Get News And Updates

law-firm-marketing.jpg

        1000Attorneys

 

California State Bar Certified

Lawyer Referral Service

California Attorney Search Hotline

1.661.310.7999

  • Los Angeles Criminal Defense Attorney
  • Employment Lawyer Los Angeles
  • Workers Compensation Lawyer Los Angeles
  • Los Angeles Divorce Lawyer
  • Los Angeles Car Accident Lawyer
  • Los Angeles Personal Injury Attorney
  • Los Angeles Personal Injury Lawyer

Reproduction in whole or in part in any form or medium without express written permission is prohibited. Service provided by 1000Attorneys.com, a State Bar Certified Attorney Referral and Information Service ( Certification # 0128 ).    Disclaimer: All Lawyer Referrals are unbiased and impartial. This service is not paid lawyer advertising nor is the service owned or operated by lawyers receiving referrals. Members of our network must meet minimal requirements set forth by the service and the CA State Bar. Information provided in this website is not legal advice and no attorney-client relationship if formed by use of this website. 1000Attorneys.com | California Lawyer Referral and Information Service | Los Angeles, California | info@1000attorneys.com | 661-310-7999 | Locations: Beverly HillsLos AngelesLong BeachGlendaleSanta ClaritaLancasterPalmdalePomonaTorrance , PasadenaEl MonteDowneyInglewoodWest CovinaNorwalkBurbankNewport BeachLaguna BeachSanta MonicaAnaheimSanta AnaIrvine, and San Diego