Pregnancy Discrimination

Pregnancy discrimination occurs when an employer subjects an employee to some sort of adverse employment action, or subjects the employee to less than favorable treatment, on the basis of the employee’s pregnancy. In essence the law treats pregnancy discrimination as a form of sex and or disability discrimination.

It is unlawful for your employer to discriminate against or harass you because of pregnancy, perceived pregnancy, childbirth, breastfeeding or any related medical condition. It is also unlawful for your employer to retaliate against you because of pregnancy, perceived pregnancy or because you exercised the right to take a pregnancy disability leave or sought reasonable accommodations.

An employee is “disabled by pregnancy” if a health care provider deems that the employee is unable, because of pregnancy, to perform any one or more of the essential job functions, or to perform any of these functions without undue risk to the employee, the successful completion of the pregnancy or to other people.

Disabled by pregnancy includes, but is not limited to, time when the employee suffers from severe morning sickness or needs time off for:

• Prenatal or Postnatal care
• Bed rest
• Gestational diabetes
• Pregnancy-induced hypertension
• Preeclampsia
• Postpartum depression
• Childbirth
• Loss or end of pregnancy
• Recovery from childbirth or loss or end of pregnancy
• Breastfeeding or expressing milk

It is important to note that an employee’s health care provider ultimately decides if the employee is disabled by pregnancy. Perceived

Pregnancy: Discrimination protections also include “perceived pregnancy,” defined as being regarded or treated by an employer as being pregnant or having a related medical condition. This protects employees from being discriminated against or harassed because the employer thinks or believes the employee is pregnant, regardless of whether the employee is actually pregnant. For example, an employer who terminates an employee because he thinks the employee is pregnant cannot later argue that the termination was not wrongful simply because it turned out the employee was not in fact pregnant.

Your employer is to provide a reasonable accommodation if you are affected by pregnancy and needs change in the work environment or job duties to enable you to perform the essential functions of your job. Remember, you only need to be affected by pregnancy; not disabled by pregnancy, for reasonable accommodation and transfer requests to apply. You and your employer will engage in a good faith interactive process to address what reasonable accommodations would be appropriate. Examples of common reasonable accommodations may include, but are not limited to:

• Modifying work practices or policies
• Modifying work duties
• Modifying work schedules to permit earlier or later hours
• Permitting more frequent breaks
• Providing furniture or acquiring or modifying equipment or devices
• Providing a reasonable amount of break time and use of a room or other location in close proximity to the employee’s work are to express breast milk in private

An employee who is “disabled by pregnancy” is entitled to Pregnancy Disability Leave (“PDL”).Length of Pregnancy Disability Leave: PDL is generally 4 months of unpaid leave.

The 4 months of leave is allowed for each pregnancy and is not an annual limit. For example, an employee who took time off in February and March early in a high-risk pregnancy and then miscarried would be entitled to a new leave of up to 4 months if the employee became pregnant again later that same calendar year.

Rights When Returning To Work After Pregnancy Leave: After returning from pregnancy leave, your employer must reinstate you to the same position, or in some circumstances to a comparable position. Your employer must also reinstate you with no less seniority than you had when the PDL began. You are also entitled to resume your benefits upon your reinstatement in the same manner and at the same levels as provided when the leave began without any new qualification period, physical exam, etc.

YES! Both California and federal law require employers to reasonably accommodate employees who want to breastfeed at work. Employers must provide you with a reasonable amount of break time to breastfeed and must provide the use of a private place to do so, other than a bathroom, in close proximity to your work area. The employee’s normal work area can be used if it allows the employee to express milk in private.

An employee who is discriminated against because of pregnancy may be entitled to any or all of the following remedies:

• Hiring
• Reinstatement
• Promotion
• Admission or re-admission to a labor organization
• Damages for lost wages and benefits
• Emotional distress damages
• Punitive damages
• Attorneys’ fees and costs

In order to prove pregnancy discrimination, the pregnant party must usually show ALL of the following factors:

• The employer was an entity covered by applicable pregnancy discrimination laws: in California, this means that the employer must regularly employ 5 employees at the time of the discrimination, the employer is a state or government agency, or the employer is an agent of a covered party.
• The employer took an adverse employment action against the employee: some examples of adverse employment action include: firing the employee, demoting the employee’s pay, demoting the employee’s position, preventing the employee from effectively doing her job, etc. This can also occur when the employer requires the pregnant employee to undertake tasks which are physically impossible due to her pregnant state. For example, making a pregnant employee lift a 70 pound box
• The employee’s pregnancy, her pregnancy-related disability, or her ability to become pregnant was a motivating reason for the employer’s negative employment action; and The employee suffered some kind of harm because of the employer’s negative employment action: when an employee has been fired, this factor is usually met.

FAILURE TO HIRE: A pregnant woman applies for a job and during the interview, the supervisor says, “we can’t hire you because you are pregnant.” See EEOC v. High Speed Enterprise, Inc. d/b/a/ Subway.

FAILURE TO ACCOMMODATE: An employee who was trying to get pregnant informed her employer that she was in treatment for infertility, wherein her employer responded with derogatory comments. A year later the employee became pregnant and needed travel restrictions; her employer later fired her. See EEOC v. Step Three, Ltd.

FAILURE TO ACCOMMODATE: A pregnant employee requested that she be moved closer to the bathroom to accommodate her severe nausea and vomiting which arose due to her pregnancy. Further, while she was on leave for the pregnancy, she was demoted. See EEOC v. Engineering Documentation Sys., Inc.

SUBJECT TO ADVERSE TREATMENT: Employer forced its pregnant employees, working as contract security guards on U.S. Army bases, to take leave and discharging them because of pregnancy. The employer also subjected the pregnant employees to less favorable terms and conditions of employment, including preventing them from completing their essential job duties. The company ended up paying $1,620,000 in damages to the victims of the discrimination. See EEOC v. Akal Sec., Inc.

PREGNANCY HARASSMENT: Employer makes insulting jokes, offensive comments, and disparaging remarks to the pregnant employee in the hopes that she may quit.

FAILURE TO PROVIDE LACTATION BREAKS: employer fails to provide the employee with a reasonable amount of time to lactate. However, it is important to note that employers are not required to give these breaks if it would cause a serious disruption to the operation of the business, but this is a hard standard to meet. Usually women should be given 15-20 minutes to lactate.

FEDERAL LAW

Under Title VII of the Civil Rights Act of 1964, Congress carved out an amendment that applies to pregnant women, known as the Pregnancy Discrimination Act (PDA). The Pregnancy Discrimination Act specifically prohibits discrimination of the basis of a pregnancy. The PDA treats pregnancy as a form of temporary disability. Therefore, if a woman is unable to perform her work duties, she must be treated as any other disabled employee. In other words, the employer must provide reasonable accommodations to allow the employee to perform the essential functions of their job, unless the accommodations would cause undue hardship.

STATE LAW

California Government Code section 12940(a) states that it is unlawful for: “an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Therefore, if an employee has been discriminated against on the basis of her pregnancy, the employee may sue under California’s FEHA statute.

Statute of Limitations

Statute of limitations refers to the amount of time a person has to file a lawsuit. If that person does not file within the time permitted they lose out on the chance to recover even a single penny. The employee must file a complaint against the employer with California’s Department of Fair Employment and Housing (DFEH) no later than one year from the date of the alleged discriminatory act; the employee has another one year to file suit in civil court after the right to sue letter is issued. However, if the employee wants to file under federal law, he or she has 300 days from the date of the alleged discriminatory act.

What If the Time Has Passed for Me to File A Wrongful Termination Lawsuit?

In most cases, if you do not file a timely lawsuit within the statute of limitations, then there is no chance of recovery. However, there is one option that an employee who has been discriminated against can take. This includes utilizing the Continuing Violations Doctrine. The Continuing Violation Doctrine may extend the one-year time period if the employee’s lawyer can prove that some of the employer’s conduct fell outside the one-year period AND the conduct was sufficiently linked to the conduct that does fall within the one-year period.