The California Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice for an employer to discriminate because of “race, religious creed, color, national origin, ancestry, physical disability, medical condition, marital status, sex, age, or sexual orientation.” [Gov. Code § 12940(a).] This includes “pregnancy, childbirth, or other related medical condition.” [Gov. Code §12945.] Pregnancy discrimination is tantamount to sex discrimination under Government Code section 12945(b) and California Code of Regulations, title 2, section 7291.5. California Code of Regulations section 7291.5(a), states that it is unlawful for any employer, because of pregnancy of an employee to:
- Refuse to hire or employ the applicant;
- Refuse to select the applicant or employee for a training program leading to employment or promotion (unless the employer has less than 15 employees);
- Refuse to promote the employee;
- Bar or to discharge the applicant or employee from employment or from a training program leading to employment or promotion;
- Refuse to provide health benefits for pregnancy if the employer provides such benefits for other temporary disabilities (unless the employer has less than 15 employees);
- Discriminate against the applicant or employee in terms, conditions or privileges of employment (unless the employer has less than 15 employees);
- Harass the applicant or employee because of pregnancy, as set forth in section 7291.3;
- Retaliate, as set forth in section 7291.14, against the employee because of pregnancy or because that employee has exercised her right to take a pregnancy disability leave or transfer;
- Refuse to accommodate the employee who is temporarily disabled by pregnancy to the same extent that other temporarily disabled employees are accommodated under the employer’s policy, practice or collective bargaining agreement;
- Refuse to transfer the employee affected by pregnancy, as set forth at section 7291.6, below; [and/or]
- Refuse to grant the employee disabled by pregnancy a pregnancy disability leave.
Employer’s Statutory Duty to Reasonably Accommodate.
An employer must provide a pregnant employee with a reasonable accommodation. Depending on the particular circumstances, “reasonable” accommodations may include, for example, a leave of absence, an intermittent leave schedule, a transfer to another location, or a transfer to a less strenuous position. Specifically, Government Code section 12945(b) provides:
- [That it is unlawful for] an employer to refuse to provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider.
- [That it is unlawful for] an employer who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous and hazardous positions for the duration of the disability to refuse to transfer a pregnant female employee who so requests.
- [That it is unlawful for] an employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated.
Pregnancy Disability Leave in California.
The California Pregnancy Disability Leave Law (PDLL), Government Code, section 12945(a), is contained in the FEHA. PDLL applies to employers who employ five or more employees, and applies to all employees, irrespective of the amount of time employed. It mandates that an employer must provide for up to four-months of protected leave per pregnancy, that can be taken on a continual basis, or in smaller increments, as needed. PDLL leave is unpaid, unless available paid time off is taken (e.g. vacation, paid sick time, or paid personal time off) and/or unless disability benefits are available. Because the PDLL is part of the FEHA, the same procedures and remedies that apply in FEHA discrimination cases apply in PDLL cases.
The Family Medical Leave Act (FMLA) applies to employers with 50 or more employees, and to employees employed for at least 12 months, and for more than 1250 hours. The FMLA allows up to 12 workweeks of leave per leave year for an employee who is unable to perform the essential functions of his or her position because of a serious health condition. A “serious health condition” under the FMLA also includes any period of incapacity due to pregnancy, or for prenatal care. Both parents are entitled to a combined total of 12 weeks FMLA leave for the birth of a child. The mother can use FMLA leave for prenatal care and any incapacity relating to pregnancy, as well as for childbirth and any serious health condition following childbirth. The father can use FMLA leave for birth of the child and to care for his pregnant spouse if she is incapacitated. [29 CFR §825.120 (a)(4), (5).]
The PDLL and the FMLA run concurrently. Therefore, an employee taking PDLL leave cannot request an additional 12 weeks of FMLA leave. The employee may, however, take an additional 12 weeks under the California Family Rights Act (“CFRA”), since the PDLL and CFRA do not run concurrently. CFRA applies to employers with 50 or more employees, and to employees employed for at least 12 months, and for more than 1250 hours.
You have a right to reinstatement after you take pregnancy leave.
The FEHA also applies to reinstatement rights pursuant to the California Code of Regulations, title 2, section 7291.9(c)(1), unless: 1) the position is no longer available due to reasons unrelated to the employee’s leave, or 2) the employer can establish that each means of holding open the position would have substantially undermined the employer’s ability to operate the business safely and efficiently. If either of the exceptions apply, and the same position is no longer available, the employee has the right to reinstatement to any available comparable position. [2 Cal.C.Regs. § 7291(c)(2).]
Retaliation against an employee for exercising her rights is against the law.
If you experienced retaliation in the workplace as a result of exercising your rights, or for complaining to your employer about your legally protected rights, you may have a case for retaliation.
To establish a valid case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to an adverse employment action by her employer, and that there was a causal link between the two incidents. [Wrighten v. Metropolitan Hospitals, Inc. (9th Cir. 1984) 726 F.2d 1346, 1354.] Retaliation is “adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.” [Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 1055.] Where a retaliatory course of conduct is alleged, a series of separate retaliatory acts collectively may constitute an “adverse employment action,” although none of the acts individually is actionable. [Id. at 1055 1056.]
The FEHA provides for detailed procedures and remedies to deter and redress unlawful employment practices, such as pregnancy discrimination and harassment. Be aware that you have only one year from the time of the discriminatory action to file a complaint.