Pregnancy Discrimination California – What are my rights?

Pregnancy discrimination by employers is illegal under both the California Fair Housing and Employment Act (FEHA) and the federal Pregnancy Discrimination Act (PDA). Between these two laws, your California employer may not:

• Deny you employment based on your pregnancy or possible future pregnancies,
• Fire you because you are pregnant,
• Deny you a promotion or raise because you are pregnant,
• Refuse to allow you pregnancy disability leave, or
• Fail to hold your position open for when you return from any job-protected leave.

If your employer discriminates against you because of your pregnancy, childbirth, or related medical condition, you may be able to recover

• lost wages and benefits,
• civil penalties,
• and attorney’s fees and court costs.

	California Fair Housing and Employment Act (FEHA)	Federal Pregnancy Discrimination Act (PDA)
Covered Employers	Employers with 5 or more employees	Employers with 15 or more employees
Prohibited Discrimination	Prohibits discrimination based on pregnancy, childbirth, or related medical conditions	Prohibits discrimination based on pregnancy, childbirth, or related medical conditions
Required Accommodations	Requires employers to provide reasonable accommodations for pregnancy, childbirth, or related medical conditions, such as modified duties, transfer to a less strenuous or hazardous position, or more frequent breaks	Requires employers to treat pregnant employees the same as other employees with similar abilities or limitations
Leave Requirements	Requires employers to provide up to 4 months of unpaid pregnancy disability leave, in addition to any leave entitlements under the California Family Rights Act (CFRA)	Does not require employers to provide paid or unpaid leave for pregnancy, but pregnant employees may be eligible for leave under the Family and Medical Leave Act (FMLA)
Reinstatement Rights	Requires employers to reinstate employees to the same or a comparable position after pregnancy disability leave, unless certain exceptions apply	Does not specifically address reinstatement rights after pregnancy-related leave, though FMLA provides job protection
Retaliation Protection	Prohibits retaliation against employees for exercising their rights under FEHA, including requesting or taking pregnancy-related leave	Prohibits retaliation against employees for exercising their rights under the PDA, including filing a complaint or opposing discriminatory practices
Enforcement	Enforced by the California Civil Rights Department (CRD); employees may file complaints with the CRD or pursue a private lawsuit	Enforced by the Equal Employment Opportunity Commission (EEOC); employees may file complaints with the EEOC or pursue a private lawsuit

Here at Shouse Law Group, we have helped countless pregnant women and new mothers get reinstated to their jobs and win large financial settlements after having been unlawfully discriminated against by their employers.

In this article, our California labor and employment lawyers will answer the following frequently-asked-questions about your rights and legal recourses:

• 1. What is pregnancy discrimination?
• 2. Is this discrimination prohibited in the workplace?
• 3. How do I prove pregnancy discrimination?
• 4. Am I protected?
• 5. What is a California pregnancy discrimination demand letter?
• 6. Is this different than a CRD complaint?
• 7. Are there federal laws prohibiting pregnancy discrimination?
• Additional reading

1. What is pregnancy discrimination?

Discrimination on the basis of pregnancy means that an employer treats pregnant employees, or pregnant job applicants, with less favor than other workers.

More specifically, you have to show the following to succeed in a pregnancy discrimination claim:

1. the employer was subject to California’s pregnancy discrimination laws (for example, it had five or more employees),
2. the employer treated you unfairly in some way (such as failing to promote or hire you),
3. this unfair treatment related to your pregnancy in some way, and
4. you were harmed because of the unfair treatment.¹

“Unfair” employment decisions include firing you solely on the basis that you were pregnant.

Pregnancy discrimination examples

Other examples of pregnancy discrimination are if you:

• were denied sick leave because you were pregnant,
• received new job assignments that involved less pay due to your pregnancy,
• were deprived training and education that other co-workers received because you were pregnant,
• were denied health insurance, health benefits, bonuses, or fringe benefits due to your pregnancy, and/or
• underwent layoffs because you were pregnant.

In our experience, employers try to hide their pregnancy discrimination behind such excuses as “cutting costs” or suddenly giving you negative performance reviews for no reason. Covert discrimination is just as illegal as blatant discrimination.

2. Is this discrimination prohibited in the workplace?

Pregnancy discrimination is generally prohibited in California workplaces.

FEHA protections

The California Fair Employment and Housing Act (FEHA) is the statute that seeks to uphold the fair treatment of pregnant workers.

This law:

1. applies to employers with five or more employees (other than religious organizations and nonprofits),² and
2. says that it is unlawful for these employers to discriminate against you on the basis of pregnancy.³

The law also prohibits employers, or co-workers, from harassing you on the basis of pregnancy.⁴

Pregnancy discrimination is a form of sex discrimination under California law.⁵

Reasonable accommodations

Note that FEHA also requires employers to provide you – if you are disabled by your pregnancy – with reasonable accommodations.⁶ Examples may include:

A reasonable accommodation may also include a period of leave if

• your pregnancy precludes you from performing “essential job functions” or
• your current job endangers you or your pregnancy.

Conditions that trigger FEHA leave

Examples of pregnancy-related conditions that may justify leave include:

• morning sickness / hyperemesis gravidarum,
• preeclampsia
• gestational diabetes,
• hypertension,
• miscarriage,
• childbirth recovery,
• post-partum depression.

Your employer has the right to see a doctor’s note (“certification”) justifying your requested accommodations. Your employer is also obligated to participate in an “interactive process” with you (and if necessary your medical team) to decide which accommodations make sense.

Other laws providing leave

Note too that there are four other laws that grant “leave rights” to pregnant employees and women with newborns. These include:

1. the federal Family and Medical Leave Act (FMLA), which grants up to 12 weeks of unpaid leave for serious health conditions including pregnancy-related disabilities;⁷
2. California’s Pregnancy Disability Leave Law (PDL), which grants up to four months of unpaid leave for pregnancy-related disabilities;
3. the California Family Rights Act (CFRA), which grants up to 12 weeks of baby-bonding leave (maternity leave); and
4. California State Disability Insurance (SDI) program, which provides up to four weeks of paid leave for a pregnancy-related disability and eight weeks of paid leave for baby-bonding.

If you are in San Francisco, you may be entitled to six weeks of extra pay for baby-bonding.

3. How do I prove pregnancy discrimination?

From our decades of combined experience fighting for pregnant workers who were discriminated against, we find that the major signs that you suffered an adverse employment action because of your pregnancy include:

• You were treated worse than employees who are not pregnant;
• Your employer said or implied that your pregnancy was a problem or would hurt the company;
• Your employer justified your termination/demotion/pay cut/etc. with an untrue reason.

Typical evidence we rely on to prove pregnancy discrimination and retaliation includes eyewitness accounts, recorded communications (such as emails and texts), and accounting documents. We advise you document everything and keep any relevant evidence to help us build your case.

4. Am I protected?

California law says that it is unlawful to discriminate against pregnant workers. You are a “worker” if you are a:

1. employee (permanent or temporary, full-time or part-time),
2. applicant, or
3. unpaid intern.⁸

5. What is a California pregnancy discrimination demand letter?

A pregnancy discrimination demand letter “demands” that your employer stop certain discriminating practices against you. You state within the letter that if these practices are stopped, then you will not take the matter further.

If your employer fails to cease the discriminating behavior, however, the letter informs that you will notify proper authorities and initiate a civil lawsuit.

We are very skilled at preparing concise and effective pregnancy discrimination letters that outline the specific facts that give rise to our clients’ pregnancy discrimination claims. In most cases, the demand letter is sufficient to propel the employer to end their discrimination and to make equitable and monetary amends.

6. Is this different than a CRD complaint?

Pregnancy discrimination demand letters are different from a CRD complaint.

California law states that in most cases, before you can file a pregnancy discrimination lawsuit, you must first file a complaint with the applicable government agency.⁹ The complaint outlines the specific discriminatory acts that your employer committed.

Compliant process

If your pregnancy discrimination claim is based on California law, then you would file a complaint with California’s Civil Rights Department (CRD), formerly California’s Department of Fair Employment and Housing (DFEH).

If your claim is based on a violation of federal law, then you would file a complaint with either:

• CRD, or
• the U.S. Equal Employment Opportunity Commission (EEOC), based in Washington, DC.

These agencies work together when processing a claim.

Administrative investigation

The CRD or EEOC will then investigate the matter and either:

• take no action, upon which you can file a lawsuit if you wish, or
• pursue an action against your employer on your behalf.

7. Are there federal laws prohibiting pregnancy discrimination?

Yes. The main federal law is the Pregnancy Discrimination Act of 1978 (PDA), which protects women experiencing:

• pregnancy,
• childbirth, or
• any pregnancy-related condition or pregnancy-related disability.¹⁰

Note that California law (FEHA) provides slightly greater protection to pregnant workers when it comes to discrimination. This is because FEHA applies to employers with five or more employees, while federal law (PDA) applies to employers with 15 or more employees.

There are several other federal laws that offer protections to pregnant workers and those with new children. Some of these include:

• Title VII of the Civil Rights Act of 1964,
• the Americans with Disabilities Act (ADA), and
• the Pregnant Workers Fairness Act.

Finally, the Fair Labor Standards Act (FLSA) requires employers to provide pregnant workers reasonable accommodations, including breaks to express breast milk. It also bars employers from retaliating against pregnant workers (such as by docking pay) for requesting accomodations.

Additional reading

For more in-depth information, refer to these scholarly articles:

• To tell or not to tell? Examining the role of discrimination in the pregnancy disclosure process at work – Journal of Occupational Health Psychology.
• Pregnancy Discrimination: Pregnant Women Need More Protection in the Workplace – San Diego Law Review.
• Examining the effects of perceived pregnancy discrimination on mother and baby health. – Journal of Applied Psychology.
• Relational Power, Legitimation, and Pregnancy Discrimination – Gender & Society.
• Making Pregnancy Work: Overcoming the Pregnancy Discrimination Act’s Capacity-Based Model – Yale Journal of Law & Feminism.

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