Pregnancy Discrimination California – What are my rights?

Pregnancy discrimination by employers is illegal under both the California Fair Housing and Employment Act (FEHA) and the federal Pregnancy Discrimination Act (PDA).

Between these two laws, California companies with at least five employees are forbidden from using your pregnancy as an excuse to either:

• Fire or demote you,
• Not hire or promote you,
• Deprive you of training or benefits, or
• Fail to provide you reasonable accommodations or job-protected pregnancy disability leave.

Here at Shouse Law Group, we have helped countless pregnant women and new mothers get reinstated to their jobs and win large financial settlements after having been unlawfully discriminated against by their employers.

In this article, our California labor and employment lawyers discuss the following topics re. pregnancy discrimination in the workplace.

• 1. Elements
• 2. Your Rights
• 3. Evidence
• 4. Am I protected?
• 5. Can I sue?
• 6. Federal Law
• Additional Reading

1. Elements

Pregnancy is a “protected class,” which means you may not be discriminated against due to your pregnancy.

For you to win a pregnancy discrimination lawsuit in California, you would need to prove by a preponderance of the evidence the following four elements of Jury Instruction (CACI) 2500.

1. the employer was subject to California’s pregnancy discrimination laws,
2. the employer treated you unfairly in some way,
3. your pregnancy was a substantial motivating reason for this unfair treatment, and
4. you were harmed because of the unfair treatment.¹

In our experience, employers try to hide their pregnancy discrimination behind such excuses as “cutting costs” or suddenly giving you negative performance reviews for no reason. Covert discrimination is just as illegal as blatant discrimination.

2. Your Rights

The California Fair Employment and Housing Act (FEHA) is the statute that seeks to uphold the fair treatment of pregnant workers. This law:

1. applies to employers with five or more employees (other than religious organizations and nonprofits),² and
2. says that it is unlawful for these employers to discriminate against you on the basis of pregnancy.³

FEHA also prohibits employers and co-workers from harassing you on the basis of pregnancy, no matter the size of the employer.⁴

Since only biological females can get pregnant, pregnancy discrimination is a form of sex discrimination under California law.⁵

Reasonable Accommodations

FEHA requires employers to provide you – if you are disabled by your pregnancy – with reasonable accommodations. Examples may include:

Leave as a Reasonable Accommodation

In some cases, a reasonable accommodation may also include a period of leave if:

• your pregnancy precludes you from performing “essential job functions” or
• your current job endangers you or your pregnancy.

Examples of pregnancy-related conditions that may justify leave include:

• morning sickness / hyperemesis gravidarum,
• preeclampsia
• gestational diabetes,
• hypertension,
• miscarriage,
• childbirth recovery,
• post-partum depression.

Your employer has the right to see a doctor’s note (“certification”) justifying your requested accommodations. Your employer is also obligated to participate in an “interactive process” with you (and if necessary your medical team) to decide which accommodations make sense.

Additional Leave Laws

There are four other laws that grant “leave rights” to pregnant employees and women with newborns. These include:

1. the federal Family and Medical Leave Act (FMLA), which grants up to 12 weeks of unpaid leave for serious health conditions including pregnancy-related disabilities;⁷
2. California’s Pregnancy Disability Leave Law (PDL), which grants up to four months of unpaid leave for pregnancy-related disabilities;
3. California Family Rights Act (CFRA), which grants up to 12 weeks of baby-bonding leave (maternity leave); and
4. California State Disability Insurance (SDI) program, which provides up to four weeks of paid leave for a pregnancy-related disability and eight weeks of paid leave for baby-bonding.

If you are in San Francisco, you may be entitled to six weeks of extra pay for baby-bonding.

3. Evidence

From our decades of combined experience fighting for pregnant workers who were discriminated against, we find that the major signs that you suffered an adverse employment action because of your pregnancy include:

• You were treated worse than employees who are not pregnant;
• Your employer said or implied that your pregnancy was a problem or would hurt the company; and/or
• Your employer justified your termination/demotion/pay cut/etc. with an untrue reason.

The best proof of pregnancy discrimination is “direct evidence,” which is evidence that clearly shows what you are trying to prove. An example would be a text or email by your boss telling a colleague that you are going to get fired now that you are pregnant.

Unfortunately, employers rarely let their discriminatory intentions slip. Therefore, we typically rely on “circumstantial evidence” that suggests you were discriminated against. An example would be a series of positive performance reviews that mysteriously turn negative once you informed your boss about your pregnancy.

We advise you document everything and keep all relevant evidence to help us build your case.

4. Am I protected?

California’s FEHA law makes it unlawful to discriminate against pregnant workers. You are a “worker” if you are an:

1. employee (permanent or temporary, full-time or part-time),
2. applicant, or
3. unpaid intern.

Remember, FEHA’s pregnancy discrimination protections apply to you only if your employer has at least five employees.⁸

5. Can I sue?

Prior to pursuing legal action, you can send your employer a pregnancy discrimination demand letter. Like it sounds, this letter “demands” that your employer stop certain discriminating practices against you.

You state within the letter that if these practices are stopped, then you will not take the matter further. Otherwise, you will notify proper authorities and initiate a civil lawsuit.

We are very skilled at preparing concise and effective demand letters that outline the specific facts that give rise to our clients’ pregnancy discrimination claims. In most cases, the demand letter is sufficient to propel the employer to end their discrimination and to make equitable and monetary amends.

In the event the demand letter does not stop the discrimination, we can proceed to a CRD complaint, discussed below.

CRD Complaint

Before you can file a pregnancy discrimination lawsuit, California law requires you to file a complaint with the California’s Civil Rights Department (CRD).⁹ The complaint outlines the specific discriminatory acts that your employer committed.

If your claim is based on a violation of federal law, then you could instead file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), based in Washington, DC. The CRD and EEOC work together when processing claims.

The CRD or EEOC will then investigate the matter and either:

• take no action, upon which we can file a lawsuit if you wish or
• pursue an action against your employer on your behalf.

Depending on your case, you may be able to recover a substantial financial settlement, a job reinstatement, and possibly punitive damages.

6. Federal Law

The main federal law that prohibits pregnancy discrimination is the Pregnancy Discrimination Act of 1978 (PDA), which protects women experiencing:

• pregnancy,
• childbirth, or
• any pregnancy-related condition or pregnancy-related disability.¹⁰

Note that California law (FEHA) provides slightly greater protection to pregnant workers when it comes to discrimination. This is because FEHA applies to employers with five or more employees, while federal law (PDA) applies to employers with 15 or more employees.

The following table compares and contrasts the FEHA and PDA.

	California Fair Housing and Employment Act (FEHA)	Federal Pregnancy Discrimination Act (PDA)
Covered Employers	Employers with 5 or more employees	Employers with 15 or more employees.
Prohibited Discrimination	Prohibits discrimination based on pregnancy, childbirth, or related medical conditions	Prohibits discrimination based on pregnancy, childbirth, or related medical conditions
Required Accommodations	Requires employers to provide reasonable accommodations for pregnancy, childbirth, or related medical conditions, such as modified duties, transfer to a less strenuous or hazardous position, or more frequent breaks	Requires employers to treat pregnant employees the same as other employees with similar abilities or limitations
Leave Requirements	Requires employers to provide up to 4 months of unpaid pregnancy disability leave, in addition to any leave entitlements under the California Family Rights Act (CFRA)	Does not require employers to provide paid or unpaid leave for pregnancy, but pregnant employees may be eligible for leave under the Family and Medical Leave Act (FMLA)
Reinstatement Rights	Requires employers to reinstate employees to the same or a comparable position after pregnancy disability leave, unless certain exceptions apply	Does not specifically address reinstatement rights after pregnancy-related leave, though FMLA provides job protection
Retaliation Protection	Prohibits retaliation against employees for exercising their rights under FEHA, including requesting or taking pregnancy-related leave	Prohibits retaliation against employees for exercising their rights under the PDA, including filing a complaint or opposing discriminatory practices
Enforcement	Enforced by the California Civil Rights Department (CRD); employees may file complaints with the CRD or pursue a private lawsuit	Enforced by the Equal Employment Opportunity Commission (EEOC); employees may file complaints with the EEOC or pursue a private lawsuit

There are several other federal laws that offer protections to pregnant workers and those with new children. Some of these include:

• Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on protected characteristics, including pregnancy;
• Americans with Disabilities Act (ADA), which prohibits employment discrimination based on disabilities;
• Pregnant Workers Fairness Act (PWFA), which ensures reasonable accommodations for pregnant workers.

Finally, the Fair Labor Standards Act (FLSA) requires employers to provide pregnant workers reasonable accommodations, including breaks to express breast milk. It also bars employers from retaliating against pregnant workers (such as by docking pay) for requesting accommodations.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• To tell or not to tell? Examining the role of discrimination in the pregnancy disclosure process at work – Journal of Occupational Health Psychology.
• Pregnancy Discrimination: Pregnant Women Need More Protection in the Workplace – San Diego Law Review.
• Examining the effects of perceived pregnancy discrimination on mother and baby health. – Journal of Applied Psychology.
• Relational Power, Legitimation, and Pregnancy Discrimination – Gender & Society.
• Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act’s Capacity-Based Model – Yale Journal of Law & Feminism.

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