Pregnancy Series #2: Pregnancy Discrimination Is Not OK – What You Should Know

This article is for pregnant working women and new moms in California.

I understand that work is important. If you don’t make money, you can’t buy diapers, formula, or clothing for your children. Your boss knows that the paycheck is very important to you, and sometimes he takes advantage of this by forcing you to work extra hours, or making you perform dangerous jobs that are hazardous to your health. He knows you need the money so you probably won’t complain.

Some bosses are even worse.  They simply fire pregnant women because they don’t want to deal with the hassle of filling your position while you are on leave. Nor do they want to continue paying your health insurance. They usually claim “poor performance,” “absenteeism,” or some other excuse as the reason for the firing.

Other bosses know the law and permit their employees to take leave. But demand that the employee be back in only a few weeks, or when the employee returns, the employer has drastically reduced their responsibility and cut their pay.

Is any of this behavior legal in California? No, it’s not. To find out more continue reading below.

The Pregnancy Discrimination Act (PDA), and related California law, hold that discrimination on the basis of pregnancy, childbirth, or related medical conditions, is illegal. These laws create a vast array of defenses that a California employee can assert when she has been fired, demoted, denied leave, or passed over for a promotion because of her pregnancy.

To establish a case of pregnancy discrimination, the employee must show that her employer knew she was pregnant and show evidence of pregnancy-discriminatory motive on defendant’s part. Proving the motive is your employment attorney’s job.

Generally, employers must provide a reasonable accommodation to a pregnant employee. Under California law, it is unlawful for employers to refuse to provide a reasonable accommodation requested by an employee on the advice of her health care provider, for conditions related to pregnancy, childbirth or related medical conditions.

Moreover, the law requires California employers to provide up to four months of leave [88 days] for employees actually disabled by pregnancy or pregnancy-related conditions. If an employer demands that you return before your leave it up, and fires you when you refuse, you may have a viable discrimination claim.

Here are some situations that have been litigated:

• A woman who works for an employer is eligible for pregnancy disability leave regardless of the length of time she has worked for the employer. Further, an employee does not have to work full-time in order to be eligible for leave.
• An employer may not fire or refuse to hire a woman solely because she had an abortion. The PDA applies to all situations in which women are affected by pregnancy and related medical conditions, which includes abortions.
• Terminating an employee for taking time off to undergo in vitro fertilization violates the PDA.
• A PDA claim may lie where the employer required female employees to take maternity leave in a manner that adversely affected their eligibility for early retirement, their ability to work overtime and their ability to use accrued sick days before other types of leave.
• Leave taken for pregnancy disability does not have to be taken at one time. Leave can be taken before or after birth or at any period of time the woman is physically unable to work because of the pregnancy or pregnancy-related condition.

The list goes on and on. If you’ve been discriminated against, don’t wait around for the situation to magically fix itself. Contact an employment attorney to find out what your rights are. Being informed is the first step.

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Branigan Robertson is a California employment lawyer who exclusively represents employees in workplace disputes. He focuses his practice on sexual harassment, wage & hour, wrongful termination, and retaliation. Visit his website at BRobertsonLaw.com or call his office at 949.667.3025.