Pregnancy discrimination by employers is forbidden under the California Fair Housing and Employment Act (FEHA) as well as the Pregnancy Discrimination Act (PDA). Victims of pregnancy discrimination may be able to recover lost wages and benefits, civil penalties, and attorney’s fees and court costs.
A type of sex discrimination, pregnancy-related discrimination occurs when an employer treats a pregnant employee or applicant with less favor than any other worker. An example is when a company engages in employment practices that limit the promotion opportunities for pregnant women
Most, but not all employers, are subject to state laws that prohibit pregnancy discrimination in the workplace. Laws regarding this discrimination apply to companies with five or more employees.
The above discrimination laws are just one example of how the State seeks to protect working women. Other laws that aim at this same protection include:
- pregnancy disability leave laws,
- maternity leave laws, and
- laws on lactation breaks and pumping breast milk.
Note that for the purposes of these laws, a pregnant worker includes:
- permanent and temporary employees,
- applicants, and
- unpaid interns.
There are federal laws in place that also protect pregnant employees. The main one is the Pregnancy Discrimination Act, which applies to employers with 15 or more employees. The Act makes it unlawful for these employers to discriminate against an employee on the basis of:
- childbirth, or
- a related medical condition.
Note that pregnancy discrimination is only one form of unlawful employment discrimination in California. It is equally against the law for an employer in California to discriminate against an employee or applicant on the basis of:
Our California labor and employment lawyers will explain the following in this article:
- 1. What is pregnancy discrimination?
- 2. Is this discrimination prohibited in the workplace?
- 3. How do you prove pregnancy discrimination?
- 4. What types of female workers are protected?
- 5. What is a California pregnancy discrimination demand letter?
- 6. Is this different than a DFEH complaint?
- 7. Are there federal laws prohibiting pregnancy discrimination?
1. What is pregnancy discrimination?
Discrimination on the basis of pregnancy means that an employer treats pregnant employees, or pregnant job applicants, with less favor than other workers.
More specifically, a plaintiff has to show the following to succeed in a pregnancy discrimination claim:
- the employer was subject to California’s pregnancy discrimination laws (for example, it had five or more employees),
- the employer treated the employee unfairly in some way (such as failing to promote the person).
- this unfair treatment related to the employee’s pregnancy in some way, and
- the employee was harmed because of the unfair treatment.1
“Unfair” employment decisions include firing an employee solely on the basis because she was pregnant.
Further, an employee could also bring discrimination charges if she:
- was denied sick leave because she was pregnant,
- received new job assignments that involved less pay due to a pregnancy,
- was denied health insurance, health benefits, or fringe benefits due to a pregnancy, and/or
- underwent layoffs because she was pregnant.
2. Is this discrimination prohibited in the workplace?
Pregnancy discrimination is generally prohibited in the California workplace.
The California Fair Employment and Housing Act (FEHA) is the statute that seeks to uphold the fair treatment of pregnant workers.
- applies to employers with five or more employees,2 and
- says that it is unlawful for these employers to discriminate any employee on the basis of pregnancy.3
Pregnancy discrimination is a form of sex discrimination under California law.5
Note too that the state has five main statutes that grant “leave rights” to pregnant employees and women with newborns. These include:
- the federal Family and Medical Leave Act (FMLA),
- California’s Pregnancy Disability Leave Law (PDL),
- FEHA, and
- the California Family Rights Act (CFRA).
3. How do you prove pregnancy discrimination?
Signs that a pregnant employee suffered an adverse employment action because of her pregnancy include:
- The pregnant employee was treated worse than employees that are not pregnant;
- The employer said or implied that the employee’s pregnancy was a problem or would hurt the company;
- The employer justified the termination/demotion/pay cut/etc. with a reason the employer knows is untrue.
Typical evidence in these cases includes eyewitness accounts, recorded communications (such as emails and texts), and accounting documents.
4. What types of female workers are protected?
California law says that it is unlawful to discriminate against pregnant workers.
“Workers” includes the following:
- employees (both permanent and temporary),7
- applicants, and
- unpaid interns.8
5. What is a California pregnancy discrimination demand letter?
A pregnancy discrimination demand letter is a letter a pregnant employee (or a recently pregnant worker) sends to her employer.
The letter “demands” that the employer stop certain discriminating practices against the worker.
The employee states within the letter that if these practices are stopped, then she will not take the matter further.
If the employer fails to cease the discriminating behavior, however, the letter informs that the employee will notify proper authorities and initiate a civil lawsuit.
Pregnancy discrimination letters are often prepared by the employee’s attorney. They also outline the specific facts that give rise to a pregnancy discrimination claim.
6. Is this different than a DFEH complaint?
Pregnancy discrimination demand letters are different from a DFEH complaint.
California law states that, in most cases, before an employee can file a pregnancy discrimination lawsuit, she must first file a complaint with the applicable government agency.9
If the pregnant worker’s discrimination claim is based on California law, then she files a complaint with California’s Department of Fair Employment and Housing (DFEH).
If the claim is based on a violation of federal law, then the employee files a complaint with either:
- DFEH, or
- the U.S. Equal Employment Opportunity Commission (EEOC), based in Washington, DC.
The complaint outlines the specific discriminatory acts that the employer committed.
The DFEH or EEOC will then investigate the matter and either:
- take no action, upon which the employee can file a lawsuit if she wishes, or
- pursue an action against the employer on behalf of the employee.
7. Are there federal laws prohibiting pregnancy discrimination?
There are federal laws in the United States that prohibit pregnancy discrimination. Many of these laws are enforced by the U.S. Department of Labor (DOL).
The main federal law is the Pregnancy Discrimination Act of 1978. The Act applies to employers with 15 or more employees and states that these parties may not discriminate on the basis of:
- childbirth, or
- any pregnancy-related condition or pregnancy-related disability, such as preeclampsia, gestational diabetes, severe morning sickness, postpartum depression, hypertension, or other serious health conditions.10
Note that California law provides slightly greater protection to pregnant workers when it comes to discrimination. This is because it applies to employers with five or more employees, while federal law applies to employers with 15 or more employees.
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,
- the Americans with Disabilities Act (ADA), and
- the Pregnant Workers Fairness Act.
For additional help…
For additional guidance or to discuss your case with a labor and employment lawyer, we invite you to contact our law firm at Shouse Law Group. We provide legal advice that you can trust. We create attorney-client relationships throughout the state of California, including San Diego, Los Angeles, San Francisco, and more.
See our related articles on unpaid leave and paid family leave in California and parental leave and examples of pregnancy discrimination in the workplace.
- CACI No. 2500. Disparate Treatment—Essential Factual Elements. Judicial Council of California Civil Jury Instructions (2017 edition). See also California Gov. Code 12940 GC.
- California Gov. Code 12926d GC.
- California Gov. Code 12926r1A GC. See also California Gov. Code 12940a and 12945 GC.
- See same.
- California Gov. Code 12926r1A GC.
- California Gov. Code 12940 GC. See also Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331.
- Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837.
- California Gov. Code 12940(c), (j), and (l) GC.
- California Gov. Code 12960b GC.
- 42 U.S.C. 2000.