September 13, 2018
On July 16, 2018, California’s Department of Fair Employment and Housing (DFEH) settled a pregnancy discrimination case brought by a waitress against her employer, the Kitty Kat Bar in Huntington Park. The DFEH found that the owner of the Kitty Kat Bar violated the California Fair Employment and Housing Act (FEHA) by harassing the waitress after he learned she was pregnant, changing her work schedule to reduce her tips, and then terminating her employment. As part of the settlement, the waitress received a payment of compensation, and her employer must undergo fair-employment training for five years, must develop and distribute a written policy prohibiting sex discrimination, and must post DFEH posters regarding sexual harassment and discrimination conspicuously in his business place.
Commenting on this settlement, DFEH’s director, Kevin Kish, said “Expectant mothers are entitled to work without fear of demotion, termination, or ridicule because they are pregnant. It is unlawful for employers to harass or take action against an employee because she is pregnant or may become pregnant.”
The FEHA forbids an employer from discriminating against an employee because of, among other things, sex. [Cal. Gov. Code § 12940(a).] Sex discrimination includes discrimination based on “pregnancy, childbirth, or other related medical condition.” [Cal. Gov. Code § 12945(b), Cal. Code Regs., tit. 2, § 11038.] California Code of Regulations section 11039(a)(1) states that, unless there is a permissible defense, an employer cannot, because of the pregnancy or perceived pregnancy of a job applicant or employee:
(1) Refuse to hire or employ the applicant;
(2) Refuse to select the applicant or employee for a training program leading to employment or promotion;
(3) Refuse to promote the employee;
(4) Bar or discharge the applicant or employee from employment or from a training program leading to employment or promotion;
(5) Discriminate against the applicant or employee in terms, conditions or privileges of employment;
(6) Harass the applicant or employee because of pregnancy or perceived pregnancy;
(7) Transfer the employee affected by pregnancy, over the employee’s objections, to another position (except for a documented medical need for intermittent leave or a reduced work schedule);
(8) Require the employee to take a leave of absence because of pregnancy or perceived pregnancy when the employee has not requested leave;
(9) Retaliate, discharge, or otherwise discriminate against the applicant or employee because he/she opposed employment practices forbidden under the FEHA or filed a complaint, testified, or assisted in a proceeding under the FEHA; or
(10) Otherwise discriminate against the applicant or employee by any practice prohibited on the basis of sex.
California Code of Regulations section 11039(a)(2) states that, except as excused by a permissible defense, an employer cannot:
(1) Refuse to provide health benefits for pregnancy if the employer provides such benefits for other temporary disabilities;
(2) Refuse to provide the same health benefits to an employee who takes pregnancy disability leave, as to employees who did not;
(3) Refuse to provide reasonable accommodation for an employee or applicant affected by pregnancy;
(4) Refuse to transfer an employee affected by pregnancy;
(5) Refuse to grant a pregnancy disability leave to an employee disabled by pregnancy;
(6) Deny, interfere with, or restrain an employee’s rights to reasonable accommodation, transfer, or pregnancy disability leave under Government Code section 12945; or
(7) Retaliate against an employee for exercising his/her rights to reasonable accommodation, transfer, or pregnancy disability leave under Government Code section 12945.
Permissible defenses that the employer can invoke include a bona fide occupational qualification (such as heavy lifting), business necessity, or where the practice is required by law.
Employers Must Reasonably Accommodate Your Pregnancy
An employer must provide a pregnant employee with a reasonable accommodation. Depending on the circumstances, reasonable accommodations may include a leave of absence, intermittent leave, a transfer to another location, or a transfer to a less strenuous position. Government Code section 12945(a)(3) makes it unlawful, unless based upon a bona fide occupational qualification, for:
(1) An employer to refuse to provide reasonable accommodation for an employee for conditions related to pregnancy or childbirth, if he/she so requests with the advice of a health care provider.
(2) An employer who has a policy, practice, or collective bargaining agreement to transfer temporarily disabled employees to less strenuous or hazardous positions during the disability, to refuse to transfer a pregnant employee who so requests.
(3) An employer to refuse to temporarily transfer a pregnant employee to a less strenuous or hazardous position for the duration of the pregnancy if the employee so requests with the advice of a physician, where that transfer can be reasonably accommodated.
Pregnancy Disability Leave in California and Nationwide
The California Pregnancy Disability Leave Law (PDLL), Government Code section 12945(a), applies to employers who employ five or more employees. It requires an employer to provide up to four months of protected leave per pregnancy, that can be taken on a continual basis, or in smaller increments, as needed. PDLL leave is unpaid, unless available paid time off is taken (e.g. vacation, paid sick time, or paid personal time off) or disability benefits are available. PDLL is part of FEHA, so the same procedures and remedies that apply in FEHA discrimination cases apply in PDLL cases.
The federal Family Medical Leave Act (FMLA) applies to employers anywhere in the country that have 50 or more employees, and it benefits employees of those employers who worked at least 12 months and more than 1,250 hours. The FMLA allows up to 12 workweeks of leave per year if you are unable to perform the essential functions of the position due to a serious health condition. A “serious health condition” under the FMLA includes pregnancy-related incapacity and prenatal care.
Both parents are entitled to a combined total of 12 weeks FMLA leave for the birth of a child. A mother can use FMLA leave for prenatal care, any incapacity relating to pregnancy, childbirth, and any serious health condition following childbirth. A father can use FMLA leave for the birth of a child and to care for his pregnant spouse if she is incapacitated. [29 C.F.R. § 825.120 (a)(4), (5).]
The PDLL and the FMLA run concurrently. Therefore, if you take PDLL leave, you cannot request an additional 12 weeks of FMLA leave. You may, however, take an additional 12 weeks under the California Family Rights Act (CFRA), since the PDLL and CFRA do not run concurrently. The CFRA applies to California employers with 50 or more employees, and it benefits employees of those employers who worked at least 12 months and more than 1,250 hours.
You Have a Right to Reinstatement After You Take Pregnancy Leave
You have the right to reinstatement under California Code of Regulations, title 2, section 11043(c)(1), unless: 1) the position is no longer available due to reasons unrelated to your pregnancy leave, or 2) the employer can establish that each means of holding open the position would have substantially undermined the employer’s ability to operate the business safely and efficiently. If either of the exceptions apply, and the same position is no longer available, you still have the right to reinstatement to any available comparable position. [Cal. Code Regs., tit. 2, § 11043(c)(2).]
Retaliation Against an Employee for Exercising Her Rights is Against the Law
If you experience retaliation in the workplace as a result of exercising your rights, or for complaining to your employer about your legally protected rights, you may have a case for retaliation.
To show that your employer retaliated against you, you must show that you engaged in a protected activity (such as complaining to your manager that you are being discriminated against, or requesting a reasonable accommodation), that your employer then subjected you to an adverse employment action, and that there was a causal link between the two. [Wrighten v. Metropolitan Hospitals, Inc. (9th Cir. 1984) 726 F.2d 1346, 1354.]
An adverse employment action is “adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.” [Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 878 – 879, citing Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 – 1055.] However, even if you experience a series of small, minor retaliatory acts, none of which individually amounts to an adverse employment action, a course of conduct consisting of those acts may add up to an adverse employment action if, cumulatively, they impair your job performance or your prospects for advancement or promotion. [Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at 1055 – 1056.]
The FEHA provides detailed procedures and remedies to deter and redress unlawful employment practices, such as pregnancy discrimination and harassment. Be aware that you have only one year from the time of the discriminatory action to file a complaint.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.