Historically, pregnant women have been subject poor treatment in the workplace. Since approximately 75% of the 68 million plus women workers become pregnant at some point in their working lives, this a lot of poor treatment. This includes poor guidance by supervisors and human resources as well as abject discrimination in employment. While strides have been made to provide more explicit protections for pregnant women in the workplace, these protections are not always known by those who are protected by them or those who are subject to compliance by them.
Pregnancy discrimination is a form of sex discrimination prohibited by Title VII. Under the Pregnancy Discrimination Act, a 1978 amendment to Title VII, an employer must treat an employee who is affected by pregnancy or childbirth the same as other employees who are not so affected but are similar in their ability to work. Similarly, Pregnancy discrimination is a form of sex discrimination under the California Fair Employment and Housing Act (FEHA) and Pregnancy Discrimination Leave Law. In practice, this requirement means that employers may not assume that a woman, because she is pregnant, will not be able to work past a certain date or will not be able to perform certain job functions. This prohibits “employment discrimination based on pregnancy, the termination of a pregnancy, or childbirth.”
In practice, this means that the law obligates all employers to treat disabilities caused by pregnancy and related conditions the same as any other temporary disability under any health, disability, insurance or sick leave plan. It also prohibits discrimination based on a woman’s ability to become pregnant, such as policies that exclude women of childbearing age from certain jobs.
While that all sounds sensible and easy-to-understand in writing, what does it mean when specific situations arise? For an employee or an employer? For that, please find the 10 things you need to know about pregnancy discrimination.
- The Employee doesn’t have to tell potential or current Employers that she is pregnant. An employer cannot refuse to hire you because of your pregnancy as long as you are able to perform the functions of the job and also cannot ask you if you are pregnant or plan to have children. Such a question, if asked in the context of a job interview, performance review, or meeting regarding a job promotion, would at a minimum serve as circumstantial evidence that the employer engaged in sex discrimination in denying the job, promotion, or pay increase to the employee.
- The Employer cannot have special procedures for accommodating a pregnant Employee. The employer’s obligation to accommodate the employee for the pregnancy arises when the employee notifies the employer. Much like any disability, the employee may be required to meet the requirements of notification (i.e. typically a doctor’s note, in writing, indicating the medical condition [i.e. pregnant], and after a review of the job description, what the employee may need as an accommodation). Thereafter, the employer must engage in the interactive process for accommodating anything that may occur as a result of the pregnancy – adjusted schedules, longer breaks, etc. These procedures must be the same as for any other disability in determining whether or not the employee can continue to work. This means you cannot make the employee use up their vacation hours before sick leave, unless you make employees suffering from other disabilities due the same.
- Federal protection for pregnancy discrimination starts at employers of 15 or more, but California protection starts at employers of 1 or more. Harassing against an employee because of pregnancy or perceived pregnancy is an independent violation of FEHA for which an employer of even one employee is liable. (Gov. Code, § 12940(j); 2 Cal Code Regs., § 11036.) Furthermore, pregnancy discrimination also gives rise to a cause of action for sex discrimination under the California state constitution (See Cal. Const. Art I, § 8) even if the employer is not subject to FEHA (i.e. 5 or more employees). (Badih v. Myers (1995) 36 Cal.App.4th 1289.)
- Discrimination due to pregnancy is prohibited in all aspects of employment. This includes hiring, firing, promotion, pay, insurance coverage, participation in events or particular assignments, and any other employment benefits. It prohibits policies that limit or prevent women from doing jobs simply because they are fertile or pregnant but also forbids policies that disparately impact women because they are pregnant or able to become pregnant.
- The Employer cannot retaliate against the Employee. While seemingly obvious, the employer cannot retaliate against the employee for getting pregnant OR for bringing a pregnancy discrimination complaint. The employee can file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) or California Department of Fair Employment and Housing (DFEH), and the employer cannot treat the employee any differently as a result of it.
- The Employee controls use of leave time under the Family and Medical Leave Act, California Family Rights Act, or Pregnancy Discrimination Leave Law, not the Employer. Pregnant employees who take leave to have a child may also be covered under the Family and Medical Leave Act (FMLA), California Families Rights Act (CFRA), and the Pregnancy Discrimination Leave Law (PDLL). All of these provide the employee the option of providing the employee of electing a leave time from work as a reasonable accommodation due to the pregnancy. However, the employee is not required to use it at any certain point of the pregnancy and can use it as early or late into the pregnancy as she sees fit. Ultimately, the employees may stack the leaves provided by each and take up to 7 months’ leave. An employee who is covered by the FMLA qualifies for the benefits of FMLA and the CFRA , as well as the benefits of the PDLL . Thus, such an employee may, after completing her PDLL leave of up to 4 months for disability during pregnancy and the birth of her child, take an unpaid CFRA leave for up to 12 additional weeks for the purpose of bonding with her child.
- The Employee may be entitled to even more leave time than the maximum explicitly granted under the law as a reasonable accommodation. Even if the employer has granted the employee the maximum 4 months’ leave under the PDLL, that employee is still entitled to a reasonable accommodation—which may require more than 4 months’ leave—that does not impose an undue hardship on the employer. (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1338; see also 2 Cal Code Regs §11047 (“[t]he right to take pregnancy disability leave under [PDLL] and these regulations is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation under [FEHA]”).
- The Employer can require reasonable notice of the requested leave. If possible, an employee must provide her employer with at least 30 days advance notice of the date for which the pregnancy disability leave is sought or transfer begins and the estimated duration of the leave. If 30 days advance notice is not possible due to a change in circumstances or a medical emergency, notice must be given as soon as practical.
- The Employee can return from leave before giving birth. A pregnant employee may go on leave early on in her pregnancy due to initial complications. However, if she feels well enough to return, she can ask to do so. The employer would be limited to using the same procedures it uses for other temporary disabilities, which could require a doctor’s note. An employer must reinstate her within two business days of any required notice. If the employer did not believe that the employee could perform the duties upon return, the employer could ask for a fitness for duty examination. However, such a request must be consistent with the practices of the employer when bringing back other employees who return from leave following other temporary disabilities.
- Pregnancy discrimination includes abortion. All of the protections afforded to employees due to a pregnancy are afforded to the employee if she elects to pursue an abortion.
Employees have 180 days to file a charge of pregnancy discrimination with the EEOC from the last date of discrimination, retaliation, harassment, or intimidation. It is extended to one-year with the DFEH. The employee can file a charge even if the employee no longer works for the employer anymore, and a lawyer is not required to file a charge. Rather, the employee can visit either of the two entities respective websites to file the charge or to contact via telephone.