Los Angeles Pregnancy Discrimination Lawyer
Child birth is one of the most daunting and rewarding experiences of a woman’s life, but starting a new family can negatively affect a women’s career. When a woman experiences an adverse employment action at work due to her pregnancy, she may be entitled to recover damages. In fact, if you have been discriminated against based on your pregnancy, you are not alone. In 2016, there were over 3,000 pregnancy discrimination complaints to the Equal Employment Opportunities Commission (EEOC). In fact, you're probably asking yourself if you can sue your employer for pregnancy discrimination this very moment.
What is Pregnancy Discrimination?
Pregnancy discrimination occurs when an employer subjects an employee to some sort of adverse employment action, or subjects the employee to less than favorable treatment, on the basis of the employee’s pregnancy. In essence the law treats pregnancy discrimination as a form of sex and or disability discrimination.
It is unlawful for your employer to discriminate against or harass you because of pregnancy, perceived pregnancy, childbirth, breastfeeding or any related medical condition. It is also unlawful for your employer to retaliate against you because of pregnancy, perceived pregnancy or because you exercised the right to take a pregnancy disability leave or sought reasonable accommodations.
How Do I Know If I Am Disabled By Pregnancy?
An employee is "disabled by pregnancy" if a health care provider deems that the employee is unable, because of pregnancy, to perform any one or more of the essential job functions, or to perform any of these functions without undue risk to the employee, the successful completion of the pregnancy or to other people.
Disabled by pregnancy includes, but is not limited to, time when the employee suffers from severe morning sickness or needs time off for:
- Prenatal or Postnatal care
- Bed rest
- Gestational diabetes
- Pregnancy-induced hypertension
- Postpartum depression
- Loss or end of pregnancy
- Recovery from childbirth or loss or end of pregnancy
- Breastfeeding or expressing milk
It is important to note that an employee's health care provider ultimately decides if the employee is disabled by pregnancy.
Perceived Pregnancy: Discrimination protections also include "perceived pregnancy," defined as being regarded or treated by an employer as being pregnant or having a related medical condition. This protects employees from being discriminated against or harassed because the employer thinks or believes the employee is pregnant, regardless of whether the employee is actually pregnant. For example, an employer who terminates an employee because he thinks the employee is pregnant cannot later argue that the termination was not wrongful simply because it turned out the employee was not in fact pregnant.
What Reasonable Accommodations Am I Entitled To If I Am Pregnant?
Your employer is to provide a reasonable accommodation if you are affected by pregnancy and needs change in the work environment or job duties to enable you to perform the essential functions of your job. Remember, you only need to be affected by pregnancy; not disabled by pregnancy, for reasonable accommodation and transfer requests to apply. You and your employer will engage in a good faith interactive process to address what reasonable accommodations would be appropriate. Examples of common reasonable accommodations may include, but are not limited to:
- Modifying work practices or policies
- Modifying work duties
- Modifying work schedules to permit earlier or later hours
- Permitting more frequent breaks
- Providing furniture or acquiring or modifying equipment or devices
- Providing a reasonable amount of break time and use of a room or other location in close proximity to the employee's work are to express breast milk in private
What Type Of Pregnancy Leave Am I Entitled To?
An employee who is "disabled by pregnancy" is entitled to Pregnancy Disability Leave ("PDL").
Length of Pregnancy Disability Leave: PDL is generally 4 months of unpaid leave. The 4 months of leave is allowed for each pregnancy and is not an annual limit. For example, an employee who took time off in February and March early in a high-risk pregnancy and then miscarried would be entitled to a new leave of up to 4 months if the employee became pregnant again later that same calendar year.
Rights When Returning To Work After Pregnancy Leave: After returning from pregnancy leave, your employer must reinstate you to the same position, or in some circumstances to a comparable position. Your employer must also reinstate you with no less seniority than you had when the PDL began. You are also entitled to resume your benefits upon your reinstatement in the same manner and at the same levels as provided when the leave began without any new qualification period, physical exam, etc.
Is My Boss Required To Allow Me To Breastfeed At Work?
YES! Both California and federal law require employers to reasonably accommodate employees who want to breastfeed at work. Employers must provide you with a reasonable amount of break time to breastfeed and must provide the use of a private place to do so, other than a bathroom, in close proximity to your work area. The employee’s normal work area can be used if it allows the employee to express milk in private.
What If My Boss Has Retaliated Or Discriminated Against Me Based On Pregnancy?
An employee who is discriminated against because of pregnancy may be entitled to any or all of
the following remedies:
- Admission or re-admission to a labor organization
- Damages for lost wages and benefits
- Emotional distress damages
- Punitive damages
- Attorneys’ fees and costs
How Do I Prove Pregnancy Discrimination?
In order to prove pregnancy discrimination, the pregnant party must usually show ALL of the following factors:
- The employer was an entity covered by applicable pregnancy discrimination laws: in California, this means that the employer must regularly employ 5 employees at the time of the discrimination, the employer is a state or government agency, or the employer is an agent of a covered party.
- The employer took an adverse employment action against the employee: some examples of adverse employment action include: firing the employee, demoting the employee’s pay, demoting the employee’s position, preventing the employee from effectively doing her job, etc. This can also occur when the employer requires the pregnant employee to undertake tasks which are physically impossible due to her pregnant state. For example, making a pregnant employee lift a 70 pound box
- The employee’s pregnancy, her pregnancy-related disability, or her ability to become pregnant was a motivating reason for the employer’s negative employment action; and
The employee suffered some kind of harm because of the employer’s negative employment action: when an employee has been fired, this factor is usually met.
What Are Some Examples of What Qualifies As Pregnancy Discrimination?
FAILURE TO HIRE: A pregnant woman applies for a job and during the interview, the supervisor says, “we can’t hire you because you are pregnant.” See EEOC v. High Speed Enterprise, Inc. d/b/a/ Subway.
FAILURE TO ACCOMMODATE: An employee who was trying to get pregnant informed her employer that she was in treatment for infertility, wherein her employer responded with derogatory comments. A year later the employee became pregnant and needed travel restrictions; her employer later fired her. See EEOC v. Step Three, Ltd.
FAILURE TO ACCOMMODATE: A pregnant employee requested that she be moved closer to the bathroom to accommodate her severe nausea and vomiting which arose due to her pregnancy. Further, while she was on leave for the pregnancy, she was demoted. See EEOC v. Engineering Documentation Sys., Inc.
SUBJECT TO ADVERSE TREATMENT: Employer forced its pregnant employees, working as contract security guards on U.S. Army bases, to take leave and discharging them because of pregnancy. The employer also subjected the pregnant employees to less favorable terms and conditions of employment, including preventing them from completing their essential job duties. The company ended up paying $1,620,000 in damages to the victims of the discrimination. See EEOC v. Akal Sec., Inc.
PREGNANCY HARASSMENT: Employer makes insulting jokes, offensive comments, and disparaging remarks to the pregnant employee in the hopes that she may quit.
FAILURE TO PROVIDE LACTATION BREAKS: employer fails to provide the employee with a reasonable amount of time to lactate. However, it is important to note that employers are not required to give these breaks if it would cause a serious disruption to the operation of the business, but this is a hard standard to meet. Usually women should be given 15-20 minutes to lactate.
What Is NOT Pregnancy Discrimination?
- Employee underwent hysterectomy years after her pregnancy and was fired for it. The hysterectomy is not a pregnancy related condition and therefore there is no protection under California’s Fair Employment and Housing Act. See Williams v. MacFrugal’s Bargains.
- While on leave, a pregnant employee was fired. However, it was found that the employee had multiple major behavioral performance issues. Since the pregnancy was not a “substantial motivating factor” in the firing, the employer was not liable for discrimination. See Alamo v. Practice Management Corp.
What Laws Protect Me From Pregnancy Discrimination?
Under Title VII of the Civil Rights Act of 1964, Congress carved out an amendment that applies to pregnant women, known as the Pregnancy Discrimination Act (PDA). The Pregnancy Discrimination Act specifically prohibits discrimination of the basis of a pregnancy. The PDA treats pregnancy as a form of temporary disability. Therefore, if a woman is unable to perform her work duties, she must be treated as any other disabled employee. In other words, the employer must provide reasonable accommodations to allow the employee to perform the essential functions of their job, unless the accommodations would cause undue hardship.