Pregnancy

The Family Medical Leave Act (FMLA), California Family Rights Act (CFRA), California Pregnancy Disability Leave Law (CPDLL), and Fair Employment and Housing Act (FEHA) all protect the rights of pregnant employees.

Employers must provide pregnancy leave, accommodations upon return, and are prohibited from retaliating or harassing employees who are or become pregnant. The CPDLL grants pregnant employees up to four months of pregnancy leave – either all at once or intermittently.

Under CFRA, a woman may further request an additional 12 weeks of leave after birth upon three conditions: 1) employer employs more than 50 employees in 75 mile radius; 2) the employee worked more than 1250 hours in the 12 months before first day of requested leave; and 3) if the employee has been employed for over a year.

The California Fair Employment and Housing Act (“FEHA”), Government Code Section 12900 et seq., prohibits employment discrimination based on pregnancy or childbirth.

Government Code section 12940 provides that it is unlawful, unless based upon a bona fide occupational qualification, for an employer, because of the sex of any person “to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions or privileges of employment.” Government Code section 12926(o) defines “sex” as including pregnancy, childbirth or medical conditions related to pregnancy or childbirth.

Furthermore, Government Code section 12945 specifically provides that it is unlawful for any employer to discharge a person from her employment or to discriminate against her in compensation, terms, conditions or privileges of employment based on pregnancy, childbirth or related medical conditions.

Although ordinarily an employee must give advance notice of needing pregnancy disability leave (“PDL”), an employer may not deny the employee PDL, nor may the employer take any adverse action against the employee who fails to give advance notice of needing PDL, where advance notice is impracticable, based on a medical emergency, or it is otherwise unforeseeable. 2 Cal. Code Regs., § 7291.10(a)(5).

FEHA provides:

that it is an unlawful employment practice for an employer to discharge a person from employment because of the person’s medical disability, medical condition, or sex (Gov. Code, § 12940), or to discharge a female employee because of her pregnancy (Gov. Code, § 12945).

Discriminatory intent, a necessary element of a discrimination claim, can be proven either through direct evidence or through an inferential test. The overall consideration is that the Pregnancy Discrimination Act is a remedial statute and should be broadly construed.

Recent case law makes it clear that if the employee is disabled or if the employer regards the employee as disabled, the employer has an affirmative obligation to engage in the interactive process, by inquiring as to how the perceived disability will or does affect job function, and determining what can be done to deal with these perceived limitations, if any. Nonetheless, an employer’s duty to accommodate is inextricably linked to its obligation to engage in a timely, good faith discussion with an applicant or employee whom it knows is disabled, and who has requested an accommodation, to determine the extent of the individual’s limitations, before an individual may be deemed unable to work.

If you need counsel to review a possible pregnancy discrimination issue, please contact us at (310) 477-7767 or fill out the form here.