Expecting a child can be one of the most precious, but also physically and emotionally taxing, times in a woman’s life. Add to that the stress of discrimination at work due to your pregnancy and a time that should be special and memorable can quickly turn into a crisis. Pregnancy discrimination can take many forms, some of which are challenging to determine or identify. Sometimes discrimination can take the form of obvious verbal harassment at work or termination of employment based on knowledge that an employee is pregnant. Other times, however, the actions of an employer can be well-intentioned or discrete, but ultimately result in an act of discrimination. For instance, many employers may have assumptions about the needs or abilities of pregnant women during pregnancy and may project these assumptions onto employees. Some women will not need to take time off for morning sickness or other common pregnancy changes. Other women may have severe morning sickness and may even be hospitalized. Employers may also make assumptions or not understand what accommodations a pregnant woman may or may not need in the workplace itself. Reasonable accommodations in the work environment and a pregnant employee’s job duties may allow many women to continue working right up until their due date. On the other hand, conditions present in another work environment may not allow a woman to safely carry a child and she may need to be reassigned to another position for a period of time. We are dedicated to being advocates for women who are facing pregnancy discrimination. If you believe you have been treated unfairly, you are likely in a vulnerable spot and you deserve to have support. You do not need to go through this process alone. Our team of experienced pregnancy discrimination attorneys has the legal skills and tools to help you navigate back to a healthy professional life. One way to begin is by educating yourself on some of the basics of your legal rights and protections under federal and state law as a pregnant worker or new parent in the workplace.
As the stipulations outlined in various laws associated with pregnancy rights and discrimination are vast, it is helpful to consider these questions before delving into the specifics of the law:
1. Is your workplace safe for you during your pregnancy both physically and emotionally?
2. Is there anything medically significant about your pregnancy that is occurring beyond the normal medical conditions of pregnancy?
3. How large is your employer and how long have your worked there?
4. Does your employer have a company policy specific to pregnancy or childbirth?
5. What is your employer’s policy around work for any person experiencing short term disability?
These questions will help guide you through the details of the acts and laws below.
There are seven major acts on the federal and state level that provide substantial protection to new families.
On the federal level, you are protected by the:
In California specifically, you are protected by the:
These acts require that an employer offer accommodations and protection in a workplace, time off, compensation during your leave, and that you may return to your position when you are able to. A violation of any of these acts is unlawful.
California and federal law prohibit harassment and discrimination at the workplace based on pregnancy, a pregnancy-related medical condition, or childbirth. This may occur in the form of verbal exchanges or be related to working conditions and accommodations.
The U.S. Equal Opportunity Employment Commission (EEOC) defines pregnancy discrimination as unfavorable treatment of an applicant or employee on the basis of pregnancy, childbirth or any medical condition related to these. Categorized under pregnancy discrimination is a wide variety of instances in which an employee or potential employee might find themselves. It is unlawful to be treated unfavorably on the basis of pregnancy or a related condition when it comes to being hired, fired, promoted, demoted, a job assignment, or your salary or wage. All too often, women face a reality in which their career advancement is hindered by pregnancy or childbirth. However, if you find yourself in one of these situations, you should know that you have rights and may be entitled to legal compensation.
Employers may not refuse a job applicant because she is pregnant or due to any other pregnancy-related condition, so long as she is able to perform the duties of the job. Equal treatment under the law extends to firing, fringe benefits, promotions, layoffs, trainings, etc. These are known as tangible employment actions, which may not be taken on the basis of a protected status, such as pregnancy.
Employers are required to modify tasks and assignments to provide reasonable accommodations to pregnant workers as they would for an employee who was temporarily disabled. If you doctor gives you weight restrictions or you cannot be around certain chemicals, your employer must provide you with reasonable accommodations.
This equal treatment extends to any medical condition or complication that comes from pregnancy. Employers cannot decide for you what is risky, and you may need to provide a doctor’s note for certain accommodation requests.
To understand your protection under the law, it is important to have a comprehensive understanding of both state and federal law protection. Federal law uses a combination of the Pregnancy Discrimination Act (PDA) in conjunction with the Americans with Disabilities Act (ADA) for a more comprehensive protection against discrimination during pregnancy and any complications associated with pregnancy.
These laws make it unlawful to discriminate on the basis of pregnancy, intention of pregnancy, medical conditions associated with pregnancy or past, current or future abortions. Employers who are subject to the requirements of the PDA and ADA must provide accommodations to pregnant workers and those with related medical conditions, just as they must for employees with other disabilities. Reasonable accommodations might include changes to work schedule—either by changing shifts, working from home, or differently scheduled breaks—an adjustment in office furniture, or a change to work duties for a period of time.
The ADA gives further protection to women who are experiencing complications beyond normal pregnancy. For instance, if you develop gestational diabetes, gestational hypertension or preeclampsia, your employer is required to accommodate for your medical needs.
California provides an even broader level of protection through the California Fair Employment and Housing Act (FEHA). This law extends protection by applying to businesses with 5 or more employees and stipulates that employees may return to their former employment after childbirth.
Under federal law, employers must provide employees with additional break time to express milk for the employee’s infant child. They must also provide a clean, private room, other than a restroom and in close proximity to her workplace, for the woman to express milk. The employer may not require the employee to produce a doctor’s note in order to be granted these accommodations. This protection applies to non-exempt employees for up to one year after their child is born.
California law extends the same protection to all employees for as long as the employee chooses to nurse their child.
Workplace harassment is unlawful under both federal and state law. Harassment that involves a tangible employment action in connection to the submission or rejection of conduct is called quid pro quo harassment.
If the harassment does not involve a tangible employment action but is unwanted and creates a work environment that is intimidating, hostile, or abusive, the harassment creates a hostile work environment. Co-workers, supervisors, or even clients and customers qualify as potential offenders.
Workplace harassment can be very real for expectant mothers, new mothers, or women with pregnancy-related medical conditions. For example, frequent and unwanted comments about pumping milk at work may be considered harassment. If you are repeatedly made to feel awkward about pumping milk at work or co-workers or supervisors are making repeated comments about your pregnancy, their actions may constitute a hostile work environment.
Being treated differently by coworkers because you are pregnant, depending on the nature of the treatment, may also qualify as harassment. Following workplace protocol for reporting harassment is important because an employer is required to take action if you report workplace harassment.
Typically, employers must treat pregnancy, medically related conditions, and childbirth as they would any medical condition. For instance, an employer cannot require a pregnant employee to produce proof of doctor visits unless an employer also requires this of other employees who need to seek medical care. In addition to this, employers cannot prohibit employees from working as long as they are able to perform the duties of their jobs. Likewise, they also may not force a woman to take continued leave if she was absent for a period of time due to pregnancy but can now work. For example, if a woman stays home on a doctor’s order for bed rest for a period of a few weeks but then is released from bed rest, she must be permitted to come back to work and cannot be forced to continue to take time off.
Employers must also afford any duration of disability leave or leave without pay permitted for other temporarily disabled employees to pregnancy and maternity instances. In addition to this, employers must also adhere to state and federal law regarding leave.
Under the federal Family and Medical Leave Act (FMLA), employers with 50 or more employees are required to grant up to 12 weeks off for pregnancy related time. This extends to childbirth, adoption or foster care placement. In order to qualify for this time, an employee must have been employed for at least a year and clocked 1,250 hours of service with the entity. These 12 weeks can be divided up and used in a number of ways to fit your needs. For instance, this time can be used for morning sickness or bed rest during pregnancy, or used to spend time with a child within one year of childbirth or adoption. An agreement between you and your employer may allow you to use this time flexibly, by working part time or with flexible hours.
In California, there are two distinct types of leave a mother can take in the context of pregnancy and childbirth. The first is leave associated with the disability and medical attention needed by a mother prior to, and after childbirth. This is the most common form of leave taken by new mothers.
The second is time allotted for bonding with a child. An excellent resource to interact with is a table created by the California state government that shows several available options with specifications.
California law provides more extensive time off than federal law in certain situations under the California Family Rights Act (CFRA), New Parent Leave Act (NPLA), and Pregnancy Disability Leave (PDL). PDL affords for up to 4 months of leave to a mother who is experiencing pregnancy disability. You must work for an employer who staffs 5 or more employees and this time can be taken intermittently or all at once. Under NPLA or CFRA, a mother can take 12 weeks of leave if the mother is working for a company with 20 or more employees, for at least a year and has clocked 1,250 hours. This is considered bonding time and can be taken in addition to FMLA time or PDL time.
If your employer provides health insurance benefits, it must provide benefits that treat pregnancy equal to other medical conditions. This means any health insurance offered must cover expenses similarly to other conditions. Insurance, however, does not need cover costs related to abortions.
While federal law does little to ensure compensation for new families, California state does provide support, and in fact, was the first state in the nation to grant paid time off under California Paid Family Leave (PFL). This law, in addition to the more recent New Parent Leave Act (NPLA), ensure compensation to just about all pregnant women and new mothers. Under state law, for a normal pregnancy, you can expect to have four weeks of paid leave before giving birth and six weeks of paid leave after giving birth. For complicated pregnancies that need more time, physicians can provide documentation and additional paid leave may be granted. What you are compensated may fluctuate before and after child birth but is generally between 60% and 75% of your normal income during your highest paid quarter. In addition to this, to qualify, there is no set amount of time you need to have been working for your employer. You simply need to have earned $300 or more in wages that were subjected to SDI withholdings.
It’s important to note that there are circumstances in which individuals will not be eligible for NPLA benefits. For instance, if you are receiving compensation under some other law, you may not double up on income. If you are on paid sick leave, collecting unemployment, on workers’ compensation that is equivalent to the benefits you would receive under PFL, or if you are in jail or prison, you are not eligible for this. Other circumstances may prohibit you from collecting on this benefit as well.
If you believe you are the victim of workplace discrimination based on pregnancy or pregnancy-related issues, we can help. Navigating the legal world can be complicated and it can be intimidating to bring a claim against your employer, especially if you are still working there. However, our team of experienced and skilled pregnancy discrimination lawyers are here to stand by your side and make sure you are not retaliated against.
Legislation protecting California workers against pregnancy discrimination is robust and clear. The state laws in California are some of the best in the nation, and we can make them work for you and advocate on your behalf. Let us address this issue for you, so you can get back to planning and carrying for your growing family, taking care of yourself, and having a healthy work life.
Contact us today for a complimentary consultation of your case.