Articles Posted in Pregnancy Discrimination

The Pregnancy Disability Leave regulations provide that all employers must provide a leave of up to four months, as needed, for the periods of time an employee is actually disabled because of pregnancy even if an employe has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees. If an employer has a more generous internal leave policy for similarly situated employees with other temporary disabilities than is required for pregnancy purposes under the regulations, the employer must then provide the more generous leave to employees temporarily disabled by pregnancy. (Cal. Code. Regs., tit. 2, section 7291.9(b)).

Thus, under PDLL, an employee disabled by pregnancy is entitled to up to four months of disability leave, regardless of any hardship to her employer. Under the FEHA, a disabled employee is entitled to a reasonable accommodation – which may include leave of no statutory fixed duration – provided that such accommodation does not impose an undue hardship on the employer.

It is been held that an employee may be entitled to both – the pregnancy leave and then, if needed, additional disability leave for a qualifying disability, and that disability is not in place of pregnancy by leave but a benefit in addition to pregnancy leave to a qualifying employee. (Fuentes Sanchez v Swissport, Inc.)

Recently, the Second District Court has ruled in Johnson v. United Cerebral Palsy, 173 Cal.App.4th 740 (2009) on an important issue of admissibility of evidence of discrimination against a number of employees in a discrimination and wrongful termination case brought by a former employee. In that case, a pregnant employee was terminated for allegedly falsifying time records shortly after she notified her supervisor of her pregnancy. The employer defended against pregnancy discrimination allegations by introducing evidence of the claimants substandard job performance as well as falsification of time records on her part.
The court, after pointing out that the timing of termination alone or providing false reasons for termination alone are not sufficient reasons to disprove that the termination was not discriminatory, pointed out that declarations by some employees that the employer fired shortly after they got pregnant, and statements by other employees that the same supervisor made their job far more stressful after they notified him of their pregnancy, in addition to the negative comments that the employer made to the same women about their pregnancy were sufficient evidence to allow the case to be heard in front of the jury.

Under PDA (Pregnancy Discrimination Act), it is unlawful for an employer to discriminate against an employee on the basis of pregnancy,childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs. This law is construed broadly and has been held by courts to include protection against pregnancy discrimination to women who underwent abortion, as abortion is a “medical condition” arising from pregnancy. Doe v. C.A.R.S. Protection Plus, Inc. (2008).

The basic principle of PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. The PDA doesn’t require that employers treat pregnant employees better than other temporarily disabled workers, but the PDA does require that employers treat pregnant employees no worse than all others.

Many female employees are afraid of telling their boss about their pregnancy. They are concerned about being perceived as less capable and desirable employees and about being terminated. This is especially likely to be the case if a female worker has a well-paying job and cares about her place in her workplace and her career advancement in the near future.

However, the reality is that there are simply no advantages to not disclosing pregnancy to the employer. First, sooner or later the employer will find out that the employee is pregnant as the pregnancy will become visible. Secondly, informing your employer that you are pregnant and have a difficulty in performing certain duties of your job, you may be entitled to certain protections, such as reasonable accommodations to your condition.

If you are concerned about pregnancy discrimination, this is yet another reason to put your employer on notice that you are pregnant as soon as possible. Employers who are sued for pregnancy discrimination ordinarily argue that they had no knowledge of the suing employee’s pregnancy. This is often grounds for dismissal of the discrimination claim. By notifying your employer of your pregnancy promptly, you take this argument away, creating a further legal protection for yourself. After all, the more risky the position that the employer puts itself in when planning to terminate you, the less likely you are to be terminated.

FEHA (Fair Employment and Housing Act) prohibits disability discrimination and pregnancy based discrimination in California. To prove a wrongful termination claim based on pregnancy discrimination and failure to provide reasonable accommodations to a pregnant employee at workplace, first she has to prove that her condition constitutes disability within the meaning of the statute Cal. Gov. Code section 12940(m) which prohibits employment discrimination based on actual or perceived disability, as normal pregnancy itself is not considered disability entitling an employee to special accommodations.

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Under California Fair Employment and Housing Act (FEHA) physical disability is defined as a condition that limits a major life activity. Thus, the female worker must show that a condition arising out of her pregnancy limited one or more of her major life conditions. An employee must specific state which of her daily functions was impaired by the condition arising out of pregnancy and what exactly she was not able to do in a course of her daily life that she would have otherwise been able to do.

In one case, the court rejected the employee’s argument that her morning sickness during pregnancy constituted disability entitling her to the protection of pregnancy and disability discrimination laws. The court stated that according to Fair Employment and Housing Commission regulation 7291.2(g) a woman is “considered to be ‘disabled by pregnancy’ if she is suffering from severe ‘morning sickness’.”

It is common for an employee who is subjected to discriminatory conduct or harassment at workplace in California to be afraid to complain about the harasser to his superiors for fear of retaliation and losing a job. However, an aggrieved employee simply has nothing to gain by keeping quiet. In most cases, the harasser’s unlawful conduct not only doesn’t stop, but becomes progressively more unacceptable and egregious, causing more stress to the victim of potential discrimination and harassment.

Even more importantly, by not complaining, and employee not only doesn’t allow the employer to address discrimination and harassment and possibly discipline the harasser, but the victim virtually forecloses possibility of having viable legal claims for discrimination and harassment in the future. Unless the harasser is the aggrieved employee’s supervisor, and employer is not liable for discrimination and harassment, if the employer did not know or had not reason to know that such discrimination or harassment took place.

Therefore, if you believe that you are subjected to unlawful discrimination and/or harassment at workplace, it is crucial that you complain about the conduct in writing to your human resources department and higher if necessary. In your complaints, you should outline in detail the facts and the circumstances of what you believe to be an unlawful conduct toward you at workplace, requesting prompt, thorough, formal investigation of your allegations as required by law.

pregnancy discrimination laws californiaSeveral laws protect California women from pregnancy discrimination at workplace. These laws interact with each other in complex ways. Each law and protection may or may not apply depending on the size of the employer, the employee’s length of service, and other facts. Some leaves run concurrently, while others don’t.

There are three statutes that directly related to leave during and after pregnancy: California Pregnancy Disability Leave Law (PDLL), California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA)

California’s Pregnancy Disability Leave Law is the most inclusive and should be looked at first in determining a woman’s entitled to protected leave. All California employers with at least five employees are covered. Pregnancy disability leave is available regardless of a woman’s length of service with a covered employer, and it is available to both full and part-time employees.