PREGNANCY DISCRIMINATION IS ILLEGAL
This site is dedicated to addressing and preventing pregnancy discrimination in the workplace in California.

Pregnancy discrimination, which is a sub-category of sex or gender discrimination, often takes place in the form of denying leave to workers who are entitled to it. Pregnant women are entitled to leave under different statutes and an employer who violates the statutory rights of employees to take leave from work for legitimate reasons under the statute is in violation of the law and liable for damages.

The legal term for unlawful gender discrimination based on stereotypes is called disparate treatment. When an employer discriminates against an employee based on the employee’s gender, such as giving to one sex preference in hiring, salary advancements, or promotions, that is discrimination based on disparate treatment.

Discrimination Based on Pregnancy or Potential Pregnancy

Discrimination based on pregnancy, childbirth, or related medical conditions, is prohibited by both the California Fair Employment and Housing Act (FEHA) and Title VII of the Federal Civil Rights Act.

FEHA, at California Government Code, Section 12945 (b) (2) requires that if your employer has a policy or practice that requires that temporarily disabled employees be transferred to less strenuous or hazardous positions while they are disabled, then the employer may not refuse to transfer you while you are pregnant, if you ask to be transferred according to this practice.

Also, according to guidelines published by the FEHA, it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant.

So-called “maternal profiling” in which employers discriminate against women who have children, or women who will have children in the future, violates both FEHA and Title VII.

Pregnancy Leave

There are three statutes which give women in California the right to a certain amount of pregnancy leave. These three bodies of law are the federal Family Medical Leave Act of 1993 (FMLA), California Pregnancy Disability Leave (PDL), and the California Family Rights Act (CFRA). The size of your place of employment (i.e., number of employees) affects which laws apply to your employment.

California also offers Paid Family Leave insurance, which is unemployment compensation disability insurance provided by California’s State Disability Insurance (SDI) program and funded by employee payroll deductions. Paid Family Leave benefits are available to workers who suffer a wage loss due to time taken off work to provide care for a seriously ill family member or to bond with a new child.

California workers may receive up to six weeks of partial pay Paid Family Leave benefits each year. Employees who pay into California’s SDI program are eligible for Paid Family Leave benefits regardless of the size of their employer.

Family Medical Leave Act of 1993:

The Family Medical Leave Act (FMLA) allows for up to four months of leave from work, and it applies equally to men and women. There are four reasons that you may qualify for leave under the FMLA:

(1) To care for a child born within the last year;

(2) To care for a child that has been adopted or placed in foster care with you during the past year;

(3) To care for a child, spouse, or parent with a serious health condition; or

(4) For a serious health condition that makes you unable to perform the functions of your position.

California Pregnancy Disability Leave:

Women in California who are disabled by their pregnancy are entitled to up to four months of protected leave under California Pregnancy Disability Leave (PDL). This leave runs concurrently with FMLA. California Code of Regulations, Section 7291.7 states:

"All employers must provide a leave of up to four months, as needed, for the period(s) of time a woman is actually disabled by pregnancy even if an employer has a policy or practice which provides less than four months of leave for other similarly situated temporarily disabled employees…"

"If an employer has a more generous leave policy for other temporary disabilities than is required under Section 7291.7… the employer must provide such leave to employees temporarily disabled by pregnancy."

Disability Requirement

PDL is available only when a woman is actually disabled. This includes leave needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or any related medical condition. According to California Code of Regulations, Section 7291.2, a woman is “disabled by pregnancy” if:

"in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons…. A woman is also considered to be “disabled by pregnancy” if she is suffering from severe “morning sickness” or needs to take time off for prenatal care."

The employer is entitled to request medical certification from the employee requesting leave if the employer requires certification of other similarly suited employees. According to California Code of Regulations, Section 7291.2 “certification” means:

"a written communication from the health care provider of the employee that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or to less strenuous or hazardous duties."

California Family Rights Act:

The California Family Rights Act (CFRA) offers protected leave to care for a newly born or adopted child.

The California Supreme Court in Loniki v. Sutter Health Central, summarized the CFRA as follows:

"The CFRA applies to companies with 50 or more employees; it allows an employee up to 12 weeks of unpaid “family care and medical leave” if the employee has worked for the company for more than a year, and has at least 1,250 hours of service during the previous year. Grounds for the leave are family needs such as birth or adoption of a child, serious illness of a family member, or…when “an employee’s own serious health condition… makes the employee unable to perform functions of the position of that employee.”

Relationship Between CFRA and PDL

The right to take pregnancy leave under California Pregnancy Leave, discussed above, is “separate and distinct from the right to take a CFRA leave.” CFRA leave begins after California Pregnancy Disability Leave ends. According to California Code of Regulations, Section 7291.13:

"At the end of the employee’s period(s) of pregnancy disability, or at the end of four months pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by her pregnancy before taking CFRA leave for reason of the birth of her child."

Therefore, the maximum possible combined statutory leave entitlement under all three applicable bodies of law is four months plus 12 workweeks. In order to reach this maximum entitlement, the employee must be disabled by pregnancy for four months and then request and be eligible for a 12 week CFRA leave for reason of the birth of the child.

Please do not hesitate to give us a call at 650-857-1600 or email us at brodericklaw@brodericklaw.com for a free consultation on how best to approach your pregnancy discrimination problems with employers. At the Broderick Law Firm we are here to help you stop wrongful sexual harassment in the workplace.

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