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Pregnancy In Employment - Your Protections Beyond Discrimination

Posted by Caleb A. Miller | Aug 08, 2022 | 0 Comments

Both State and Federal laws prohibit discrimination on the basis of pregnancy, childbirth, and related medical conditions. The State and Federal laws can vary in the scope and approach to pregnancy discrimination and other benefits provided to employees. In 1976, the Supreme Court concluded in a case titled General Electric Co. v. Gilbert that discrimination on the basis of pregnancy did not constitute sex discrimination under Title VII. This meant that an employer's exclusion of pregnancy related disabilities from its otherwise comprehensive disability plan was legal and lawful leaving all employees who are pregnant or suffering from pregnancy related disabilities with no job protections and employers were free to terminate or withhold coverage. 

The Beginning of Pregnancy Protections

Both the U.S. Congress and California State passed legislation in response to the concerns after the General Electric decision. The Federal Government passed the Pregnancy Discrimination Act of 1978 which amended Title VII (applies to employers with 15 or more employees) to include a ban on discrimination on the basis of pregnancy, childbirth or related medical conditions as a form of sex discrimination. California included  in its Fair Employment and Housing Act ("FEHA"; applies to employers with 5 or more employees), specifically in Government Code sections 12926(1) and (r)(1), 12940 and 12945, laws that prohibit the discrimination on these same bases. In 2000, an amendment to California's law now required employers to provide reasonable accommodations for pregnancy related disabilities. 

Rights Related to a Medical Leave of Absence

An employer may not make it any more difficult to work with pregnancy related conditions than it applies to employees with other disabilities when determining their ability to work. This means that a pregnant employee generally cannot be forced to go on leave as long as she is still able to work. An employer may consistently apply procedures used for employees taking other disability leaves as toward pregnancy disability leave. For example, where an employer requires an employee to provide a medical certification confirming their inability to work for any other form of leave, they can do so with pregnancy leave. 

Employers may not also impose a rule that prevents an employee from working during periods of pregnancy when she is able to perform the job, or to return to work after some predetermined time after childbirth. The decision would be up to the doctor and not the employer of the employee. When an employee does require a leave of absence, there are two forms of job protected leave that an employee can use, and it is still unclear as to whether both forms of leave are used simultaneously or one after the other. The Federal Family Medical Leave Act, or FMLA (applies to employers with 50 or more employees), provides for 12 weeks of unpaid job protected leave to care for an injury or disability. Pregnancies can be qualifying events for taking your 12 weeks of job protected FMLA leave. 

California has the California Family Rights Act, or CFRA, (applies to employers with 50 or more employees) which also provides up to 12 weeks of job protected leave for a "serious health condition" but does not include pregnancy related disabilities. However, the CFRA provides for 12 weeks of job protected leave to bond with a newborn baby. It is argued that an employee who takes job protected leave through the FMLA would still have their full rights to job protected leave through the CFRA if the FMLA leave is for pregnancy related disability and the CFRA leave for baby bonding. 

Once reemployed at the expiration of pregnancy related leaves, the employee must be accorded the same treatment with respect to seniority retention and accrual as the employer provides to employees from other disability leaves. Finally, the employer cannot require a female employee to wait an entire year before qualifying for certain leaves of absence as it be seen as discrimination towards pregnant women. 

Sterilization or the "no pregnancy clause"

To make this clear and short, it is illegal for employers to require sterilization, birth control, or abstinence as a condition of employment. 

Insurance and Other Benefits 

The Supreme Court has expressed that health insurance and other fringe benefits cannot discriminate against any individual on the basis of sex, to include pregnancy. Employers are required to provide the same benefits, disability and medical insurance benefits for pregnancy related conditions as for any other disability conditions. Further, employers cannot limit disability benefits for pregnancy related conditions to married employees, as can be done for some other conditions. While on an extended pregnancy related leave, an employer must continue premium payments for health, life, or other insurance, and the continuation of contributions to pension, profit sharing or savings plans. 

An employer cannot use pregnancy as a reason for providing different benefits or withholding benefits that are provided to other employees even if not required by law. For example, if an employer provides full salary continuation and health insurance coverage for the duration of leaves attributable to other nonoccupational disabilities that are of a temporary nature, employers must offer equal treatment to employees on leave for pregnancy related conditions. 

The EEOC contends that if an employer's insurance plan covers the medical expenses of a female employee's husband, it must also cover the medical expenses of the wife of a male employee on an equal basis, including expenses arising from pregnancy. 


An employer may not discriminate against a person who has had or contemplates having an abortion. This applies to the hiring and firing, promotion, demotion, compensation or other working conditions. However, health insurance need only be provided for abortions only where the life of the woman would be endangered if the fetus were carried to term or where medical complications have arisen from an abortion. 

The Fair Employment and Housing Commission Forbidden Practices

On the basis of pregnancy or perceived pregnancy of an employee or job applicant, an employer may not do any of the following:

  1. refuse to hire or employ an applicant; 
  2. refuse to select an applicant or employee for a training program leading to employment or promotion;
  3. refuse to promote an employee
  4. bar or discharge an applicant or employee from employment or from a training program leading to employment or promotion;
  5. discriminate against an applicant or employee in terms, conditions or privileges of employment;
  6. harass an applicant or employee because of pregnancy;
  7. transfer an employee over her objections to another position unless the transfer occurs for the employer's legitimate operational needs unrelated to the employee's pregnancy or perceived pregnancy;
  8. require an employee to take a leave of absence;
  9. retaliate ;
  10. refuse to provide benefits if the employer provides benefits for other disabilities;
  11. refuse to provide a reasonable accommodation;
  12. refuse to transfer an eligible employee; 
  13. otherwise discriminate against an applicant or employee by engaging in any practice that is prohibited. 
Right to Reinstatement in the Same Job

So long as a pregnancy related leave does not exceed four months, an employee is entitled to their same job after taking such a leave. However, there is one exception to the general rule and that is if the job no longer exists as a result of a legitimate business decision unrelated to the leave of absence. In this case, the employer is still required to provide the employee with a comparable job. 

Employment in a comparable position is defined as employment that is virtually identical to the employee's position held prior to the disability leave in terms of pay, benefits, and working conditions. including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities that entail substantially equivalent skill, effort, responsibility, and authority. Of course, if there is no comparable position either, then the employee may take whatever position is available within the company that he or she has the skill to perform. 

Right to Accommodation to Express Milk

Labor Code Section 1030 requires every employer to provide a reasonable amount of break time to accommodate an employee desiring to express milk to her infant child. Section 1031 requires the employer to make reasonable efforts to provide a room for the employee to express milk in private. 

Contact Miller Wilmers APC and Their California Employment Attorneys if You Believe Your Rights are Being Affected

Located in Los Angeles, California, Miller Wilmers APC has experience with cases related to the full scope of employment rights as they are related to pregnancy discrimination. Contact our office for a free consultation. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


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