California and federal law protects employees against discrimination or harassment because of an employee’s pregnancy, childbirth or any related medical condition. These laws also prohibit employers from denying or interfering with an employee’s pregnancy-related employment rights.
What is Pregnancy Discrimination?
Pregnancy discrimination occurs when a female employee or job applicant is treated unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Pregnancy discrimination can take many forms. Some examples of unlawful work place pregnancy discrimination include:
- Refusing to hire a woman because she is pregnant or may someday become pregnant
- Firing or demoting a woman because she experienced medical conditions related to pregnancy
- Refusing to provide reasonable accommodations for a woman’s pregnancy-related disabilities
- Denying a woman time off for childbirth or medical conditions related to childbirth if the woman is legally entitled to take time off
- Discrimination against a woman because she needs to breastfeed, pump, or treat medical conditions related to breastfeeding
California and Federal Protections
California’s Fair Employment and Housing Act (“FEHA”)
The FEHA prohibits discrimination against employees because they belong to a protected category (sex, pregnancy, race, religion, disability, etc.). Sex is defined as including pregnancy. The FEHA prohibits employers from refusing to hire or promote employees, terminating them, or discriminating against them in compensation or in terms, conditions, or privileges of employment due to pregnancy.
Federal: Pregnancy Discrimination Act of 1978
The Pregnancy Discrimination Act (“PDA”) is an amendment to the federal law, Title VII of the Civil Rights Act of 1964. This act protects discrimination based on:
- Pregnancy
- Childbirth
- Related medical conditions
Employers must treat these employees the same way as they treat other employees who are in the same condition; this means that they cannot single out pregnant employees. The PDA emphasizes the equal treatment of pregnant employees to other employees who are similarly disabled. Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.
Accommodation Obligations
Employers must reasonably accommodate pregnant women as they would other workers. Some examples of accommodations for pregnant workers include letting them sit during their shift, providing ergonomic furniture, limiting heavy lifting, temporarily reassigning them to other tasks,
leaves of absence, and even transfer to a less demanding position. However, an employer is not required to take measures that would create an “undue burden,” which are changes that are too costly or difficult to make when considering the employer’s size and resources.
Pregnancy Discrimination Act
Under the Pregnancy Discrimination Act (PDA), employers with 15 or more employees may not discriminate against pregnant employees with regard to any benefit of employment, including disability leave, health insurance, hiring, firing, layoff, pay, training, promotions, and job assignments. In short, employers must extend the same rights and benefits to pregnant employees as they do to other similarly situated employees. The PDA does not require that employers specifically accommodate pregnant employees, but it does require them to treat pregnant employees the same as non-pregnant employees who are temporarily disabled for other reasons.
Americans with Disabilities Act
Employers with 15 or more employees are covered by the Americans with Disabilities Act (“ADA”). Under the ADA, pregnancy is not considered a disability by itself, but if an employee suffers from a pregnancy-related disability such as preeclampsia or diabetes, she is entitled to reasonable accommodation from her employer.
Interactive Process
An employee with a disabling, pregnancy-related condition must notify her employer of the need for reasonable accommodation. The employer then must engage in an “interactive process” with the employee to discuss what specific accommodation she needs and how the employer may provide it. The employer is entitled to ask for certification from the employee’s medical care provider supporting the need for accommodation.
Laws Protecting Pregnancy-Related Leave
Depending on their size, California employers are required to comply with several leave of absence laws, including the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA), and the Parent Leave Act (PLA).
California is one of the few states that offers both a pregnancy disability leave and a family medical care leave for employees. In many cases, the protected leave can combine with paid benefits and the employee can have supplemented income while on leave. In other cases, the California protected leave is in addition to the federal FMLA leave.
Family Medical Leave Act (“FMLA”)
The federal FMLA requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to eligible employees who are unable to work due to pregnancy or need time off for medical treatment. For example, an employee who suffers severe morning sickness for the first few weeks of her pregnancy may be entitled to time off from work.
The FMLA also provides that a pregnant employee may use her 12-week entitlement to take time off as needed for medical treatment related to her pregnancy. Thus, an employer must allow a pregnant employee to take time off to attend regular prenatal appointments with her doctor.
California Family Rights Act (“CFRA”)
CFRA generally mirrors the federal FMLA, and provides unpaid job protection rights for up to twelve work weeks of qualified family leave. CFRA covers employers “who do business in California” and employ 50 or more part or full time employees. All government employers must comply including state, county, and municipal organizations of any size (federal government employers do not have to comply with the California Family Rights Act).
CFRA covered employees are workers who have accumulated 1,250 hours of service during the last 12 months prior to commencement of the leave. The employee must have worked for the employer for the last twelve months. There must be fifty employees working for the employer within a 75-mile radius of the employee’s office location.
Ordinarily, FMLA and CFRA leaves will run concurrently, to an aggregate of 12 weeks of leave in a 12-month period. CFRA provides that the time the employee is on a family or medical leave will generally run concurrently under FMLA and CFRA up to an aggregate of 12 weeks of leave in a 12-month period. However, for pregnancy-related disabilities, FMLA can run concurrently with the PDL, but the CFRA cannot begin until the baby is born and either the four months of PDL has been exhausted or the employee’s doctor has certified that she no longer has a pregnancy-related disability. For early-term pregnancy-related disabilities, the employer may but need not begin the CFRA upon the exhaustion of PDL, even if the baby has not yet been born.
Pregnancy Disability Leave (“PDL”)
California Provides a protected, but unpaid leave for women who are unable to perform their work duties due to conditions related to pregnancy. Nearly all employees are covered by the act. Any business that has 5 or more employees must provide Pregnancy Disability Leave (PDL) to their employees. The only exception to this rule is non-profit businesses or religious organizations, which are exempt.
Unlike CFRA or the FMLA, there are no requirements that the employee is employed for a certain amount of time or have worked a minimum number of hours. Therefore, new employees are immediately eligible for the leave. This is different from FMLA and CFRA, both of which require a total of 12 months employment and 1,250 hours worked in the previous year.
The Pregnancy Disability Leave Act provides up to 4 months of protected leave which boils down to 88 work days or 122 calendar days. PDL taken by employees does not run concurrently with CFRA leave as the latter does not include pregnancy-related disability.
However, PDL leave can often run concurrently with FMLA leave. If the employer and employee qualify under FMLA, then leave can be taken concurrently. It is important that the employer notify the employee at the beginning of the leave that the employee’s leave will count toward PDL and FMLA simultaneously. If the employer does not find out the reason for the leave until the employee returns to work, then the employer must immediately inform the employee that the leave taken counted toward both laws. Otherwise, the employer cannot retroactively apply to leave taken.
Pregnancy Disability Leave provides time for each pregnancy. Therefore, if an employee is pregnant twice during the year, they are eligible for PDL two times. In addition, PDL can be taken before or after birth if the disability is related to the pregnancy.
The Parental Leave Act
The Parental Leave Act (“PLA”) extends some of the benefits provided by FMLA and CFRA to employees whose employers employ between 20 and 49 employees within a 75-mile radius. Specifically, PLA provides eligible employees up to 12 weeks of parental leave to bond with a new child following the birth, adoption, or placement of the child in foster care. Eligible employees have to meet the same requirement in FMLA and CFRA that they have been employed for more than 12 months and have worked at least 1,250 hours during the preceding 12 months.
Leave Interaction
An employee with a pregnancy-related disability under the ADA may also qualify for FMLA leave. If the both the ADA and the FMLA apply to the employee, the employee may be entitled to a full 12-weeks of FMLA leave and additional time off as a reasonable accommodation under the ADA. In that case, the first 12 weeks of the employee’s leave would be considered FMLA leave (thus reducing the employee’s available FMLA leave time), while the remainder would be considered ADA disability leave.
Return Rights
It is illegal for an employer to fire an employee because that employee is pregnant or taking pregnancy disability leave. Employers are required by law to reinstate employees to the same position those employees had before taking leave, and an employee may request this guarantee in writing. In some situations, an employee may be reinstated to a position that is comparable (same tasks, skills, benefits, and pay) to the job they had before taking PDL.
However, pregnancy disability leave does not protect employees from employment actions not related to their pregnancy, such as layoffs.
Filing a Pregnancy Discrimination Complaint
If you think you might have a claim for workplace discrimination based on pregnancy, then you need to speak to a lawyer. Victims of pregnancy discrimination can be eligible for backpay and compensation for emotional pain and suffering. However, every case is different, and it is important that you speak to an experienced employment lawyer so that you can discuss the options that are available to you.
