Pregnancy Discrimination
Protecting the Rights of New Parents
Welcoming a new baby into the world is usually a happy time for new parents. Yet many employers see this happy occasion as a threat to their bottom line and, in turn, create a hostile workplace for parents-to-be. Pregnancy Discrimination stems from a false belief that a pregnant employee will either be less competent and dedicated now, or after the birth of their child. The experienced employment attorneys at Miller Wilmers APC understand the harsh environment some managers create for pregnant employees and the concerning reasons for such behavior.
However, new moms are protected under the Pregnancy Discrimination Act of 1978 (PDA), an amendment to Title VII of the Civil Rights Act of 1964, which clarifies that discrimination based on pregnancy is a form of sex discrimination. Under Title VII, employers are prohibited from treating pregnant women differently from other sick, injured, or disabled employees.
Our pregnancy discrimination attorneys at Miller Wilmers APC in Southern California can help you understand your rights under Title VII to protect the well-being of your new family.
Pregnancy discrimination can include any of the following actions by an employer:
- Refusing to hire a pregnant applicant
- Firing or demoting a pregnant employee
- Denying the same or similar job to a pregnant employee when she returns from a pregnancy-related leave
- Refusing to accommodate a pregnant employee if she is unable to perform certain aspects of her job, such as heavy lifting or working with toxic chemicals
- Failing to grant a male employee health insurance coverage for his wife's pregnancy-related conditions if a female employee's husband has comprehensive health insurance through the same company plan
As a new parent, you also have the right to 12 weeks of unpaid leave to take care of your child if your company has 50 or more employees and you have been working for the organization for at least a year. The Family and Medical Leave Act (FMLA), enacted in 1993, guarantees that your health benefits remain while you are bonding with your newborn and that your job is secure until you return to work.
California has a strong public policy of “ensur[ing] that pregnant women do not lose their jobs.” California Federal S. & L. Assn. v. Guerra (1987) 479 U.S. 272, 289-290. The Fair Employment and Housing Act (“FEHA”) specifically prohibits an employer from discharging a pregnant employee or discriminating against her in compensation or in terms, conditions, or privileges of employment. See Cal. Govt. Code §§ 12926, 12940, and 12945.
Furthermore, under Government Code section 12945, an employer must provide reasonable accommodation, including medical leave, to a woman disabled by her pregnancy. The duty to accommodate is an affirmative duty and arises even where the employee has not requested any accommodation. Prillman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 949-950.
FREQUENTLY ASKED QUESTIONS
DOES MY EMPLOYER HAVE TO GIVE ME MATERNITY LEAVE?
The answer to this question depends on a number of factors. Some state laws provide for maternity leave, and fortunately California is one of them. If the mother or father qualifies for leave under the Family and Medical Leave Act (FMLA), either parent may be able to take up to 12 weeks of unpaid leave to care for and bond with the new baby. Although the Americans with Disabilities Act does not cover care for another person like FMLA does, if there are impairments during pregnancy or childbirth that create substantial limitations, a new mother may also qualify for an accommodation (including leave) under the Americans with Disabilities Act (ADA). In California, employees are offered additional leave under the California Family Rights Act so that they can bond with their newborn, adopted child, or care for a child with a serious medical condition.
WHEN SHOULD I ANNOUNCE MY PREGNANCY?
If you are eligible and plan to take maternity leave that is covered by FMLA, you should try to put your employer on notice 30 days before your estimated delivery date. Otherwise, there is really no requirement that you inform your employer (or potential employer) about your pregnancy before you are ready to do so or need an accommodation. If your employer will need help covering your absence, you may consider giving sufficient notice to allow for them to do so. It might be a good idea to deliver your pregnancy news by email so you can clearly express your intention to continue working and can also refer back to the date you announced should you need to do so. If you expect a bad reaction from your employer, you may also be able to record conversations about your pregnancy, depending on your state's laws and your employer's policy.
WHAT LAW PROTECTS ME FROM PREGNANCY DISCRIMINATION?
Protection against pregnancy discrimination falls within the Pregnancy Discrimination Act of 1978 (PDA), which requires that women affected by pregnancy, childbirth, or pregnancy-related medical conditions must be treated the same as other workers who are similar in their ability (or inability) to work because of circumstances not related to pregnancy. This means that if you are pregnant and are experiencing a pregnancy-related disability for which you need an accommodation, your employer must treat you just like any other (non-pregnant) worker with a similar disability – the underlying cause of the disability is irrelevant.
WHAT KINDS OF PREGNANCY-RELATED ISSUES MIGHT THE ADA COVER?
Generally, pregnancy is not considered a disability, but conditions with symptoms that substantially limit a major life activity may be covered under the ADA. Some of the more common pregnancy-related conditions that may be protected by ADA include abnormal bleeding, back problems, blood clots, carpal tunnel syndrome, migraines, swelling in the legs and feet, trouble breathing, fatigue, gastric reflux, diabetes, severe nausea and vomiting, hypertension, depression, and abnormal fetal growth. A pregnancy discrimination lawyer in Southern California can talk with you about your situation and help you determine whether your conditions or limitations are typically considered disabilities.
WHAT ARE PREGNANCY-RELATED ACCOMMODATIONS?
An accommodation is a job modification that changes how, when, or where you do your job, typically negotiated in partnership with your employer to allow you to continue working and earning a living through your pregnancy. Accommodations might include more frequent sitting, time off for appointments, more frequent bathroom or rest breaks, assistance with heavy lifting, working a modified schedule, or even a leave from work if the leave is of a reasonable and definite duration.
HOW DO I ASK MY EMPLOYER FOR AN ACCOMMODATION?
First, talk over various accommodation options with your doctor to see what is recommended. Next, communicate your need for an accommodation to your employer (again, email is best because it allows you to keep a record of your request). Be as specific as possible about your needs, and be clear with your employer that you will still be able to perform your job with the proposed accommodations. Provide additional information if necessary, including a detailed doctor's note. Specificity is key: avoid vague terms like “light duty” or “heavy lifting,” and avoid requests for indefinite or open-ended leave. Be careful that your doctor does not give your employer any impression that you can no longer do your job or that your return to work is indefinite – employers may be able to use this kind of language as a legal basis for termination.
