Pregnancy Rights and Discrimination

Although pregnancy is an incredibly exciting time in a woman’s life, it can also crease new challenges both personally and professionally. Unfortunately, employers do not always share in the joy of an employee’s pregnancy and, instead, discriminate and retaliate against them based on their pregnancy, childbirth, or related medical condition and also refuse to provide them with protected leaves of absence. Both California and Federal Laws prohibit pregnancy discrimination. A pregnant employee may be entitled to protection under the California Pregnancy, Disability and Accommodation Leave Law; the California Family Rights Act (often referred to as “CFRA”) and the Family and Medical Leave Act (often referred to as “FMLA”). These laws provide a pregnant employee with, among other things, protected leave, the right to reasonable accommodations, and reinstatement rights. Eligibility for these protections is determined based on the size of the employer and, in some instances, the employee’s duration of employment. Pregnant employees may be entitled to wage replacement benefits.

 

Protected Leave

Did you know pregnancy leave includes time off other than what is traditionally referred to as “maternity leave?” Many women are unaware of the leave of absence rights which can apply during pregnancy and after childbirth. There are a variety of different laws which provide for pregnancy related leaves of absence including California’s Pregnancy Disability and Accommodation Leave Law, California’s Family Rights Act and the Federal Family Medical Leave Act. Some of these leaves run concurrently while others do not. The broadest protection is provided under California’s Pregnancy Disability Leave (known as “PDL”), which applies to employees from the date of hire and allows for up to four (4) months of protected leave when an employee is disabled due to pregnancy, childbirth, or a related medical condition. A “related medical condition” can include, but is not limited to, severe morning sickness, prenatal and postnatal care, bed rest, gestational diabetes, pregnancy induced hypertension, preeclampsia, post- partum depression, loss or end of pregnancy and recovery from childbirth or loss or end of pregnancy. In some instances, an employee suffering from any of these ailments may allow an employee to take leave intermittently. Some employers, particularly those who are less sophisticated or who are based outside of California, are not familiar with the intricate interplay between these laws and may not advise female employees of their leave rights and may take adverse employment actions against a female employee instead of providing her protected leave. Denial of these leave rights may be an unlawful employment practice.

 

Reasonable Accommodation

Pregnant employees may also be entitled to reasonable accommodations for conditions related to pregnancy, childbirth, or a related medical condition if the reasonable accommodation is requested by the employee with the advice of their health care provider. These reasonable accommodations can take various forms intended to allow the employee to continue performing the essential functions of their job without having to take a leave of absence. Reasonable accommodations may include modifying work practices or policies, adjusting work duties or schedules, providing stools, chairs, additional break times or temporary transfers to a less strenuous position.

Discrimination

 

California and Federal law prohibit employers from taking action against an pregnant employee with respect to their compensation, terms, conditions or privileges of employment if based on their pregnancy. Pregnancy discrimination can take a variety of forms. Some employers, once they learn of an employee’s pregnancy, make assumptions about her plans for the future with the company and her career. Many assume the employee will not be as dedicated to her job after the child is born or may not return to work at all after giving birth. This can sometimes motivate employers to take adverse actions against a pregnant employee, including demoting them, taking away duties and responsibilities or not even assigning them, or terminating their employment. Pregnant employees may also have reinstatement rights when returning to work following a protected leave of absence. Refusal to honor these reinstatement rights can also form the basis for a pregnancy discrimination claim. An employee does not have to work for a specific period of time to be protected from pregnancy discrimination. This is important when considering some employers who learn of an applicant or recently hired employee’s pregnancy after an offer of employment was extended and then rescind the offer or refuse to hire the applicant based on her pregnancy. This is another form of prohibited discrimination.

 

Harassment

 

Pregnant employees may also be subjected to harassment based on their pregnancy. This can take on a variety of different forms including, but not limited to, offensive comments regarding the employee’s body or pregnancy in general or offensive comments regarding the employee’s need for leave of absence or reasonable accommodation. If the conduct becomes sufficiently severe or pervasive, it can create an unlawful hostile work environment based on pregnancy, childbirth or related medical condition.

 

Retaliation

 

Retaliation is also prohibited by California and Federal laws when a pregnant employee exercises her right to a protected leave of absence or requests a reasonable accommodation. Adverse employment actions which are based on any of these protected activities may form the basis for a pregnancy retaliation claim

 

Paid Leave

 

Pregnant employees may be able to receive wage replacement benefits while on a protected leave. Employees should ensure they understand their rights to utilize any accrued paid sick leave, vacation, or paid time off in connection with their pregnancy. Employees may also apply for wage replacement benefits under California’s State Disability Insurance Program and Paid Sick Leave law (which is a wage replacement law but does not provide any leave rights). Information regarding California wage replacement programs can be found on the Employment Development Department’s website and should also be available through the employer. Ares Law Group’s attorneys are experts in California State and Federal laws providing for pregnancy leave, reasonable accommodations and prohibiting pregnancy discrimination, harassment and retaliation. If you have questions regarding your rights, believe your rights have been denied, or you have been subjected to pregnancy discrimination, harassment, or retaliation, you should contact an employment attorney immediately.

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