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Pregnancy Discrimination Harassment What Are Your Rights

Here for Expectant Mothers

If you are a working woman, you can experience conflicting emotions when you believe that you might be pregnant or learn that you are pregnant. While there may be great excitement and joy in anticipating the arrival of a new baby, there may also be some anxiety: how will the pregnancy affect your job, especially if it involves physical labor, travelling, or unusual hours? How will the pregnancy affect your physical ability to work, particularly if there are any complications? Will your employer treat you differently when you inform them of your pregnancy, and when must you inform them? Will you lose your job when you take maternity leave? A Los Angeles County employment attorney can advise you of the answers to these questions.

While some of these questions cannot be answered easily, pregnant workers should be aware that there are a number of federal and California state laws that protect the employment rights of pregnant employees. When you take the time to understand these rights, you will have a better idea of what issues to be aware of as you work throughout your pregnancy, and you can gain reassurance in knowing that your employer must abide by certain legal requirements. If you are aware of your rights, as well as your employer’s rights and obligations, you will be able to navigate with confidence through the workplace while you are expecting a baby, no matter what situation arises.

Federal Laws Protecting Pregnant Employees: The Pregnancy Discrimination Act (PDA) and the Family Medical Leave Act (FMLA)

The two primary federal laws governing the rights pregnant workers are the Pregnancy Discrimination Act (PDA) and the Family Medical Leave Act (FMLA).

The PDA was passed in 1978 as an amendment to the Civil Rights Act of 1964. Prior to that time, various court decisions demonstrated that both state laws and corporate employment policies allowed employers lawfully to discriminate against pregnant women workers in regard to hiring, retention, promotion, pay, benefits, and other conditions related to employment. The PDA, however, made it unlawful for employers with 15 or more employees to discriminate against women on account of pregnancy or medical conditions related to pregnancy or childbirth.

Generally, the PDA makes it unlawful for covered employers to discriminate against pregnant women due to their pregnant condition or due to any prejudice against pregnancy by the employer, the employer’s clients, or the employer’s customers in decisions related to hiring, discharging, compensation, and other conditions of employment.

Conceptually, an employer must treat the condition of pregnancy as no different from any other physical condition that might limit an employee’s ability to perform certain functions. Thus, if the pregnancy impedes an employee to carry out certain tasks, the employer must accommodate those limitations to the extent possible, and any disability associated with pregnancy must be treated the same as any other temporary disability of an employee with a non-pregnancy-related condition, as it may relate to seniority, vacation accruals, wage or salary increases, promotions, job assignments, training, benefits, or any other condition of employment. If an employer provides medical insurance coverage to employees, the PDA also provides that the medical insurance coverage must cover pregnancy and pregnancy-related conditions.

In essence, the PDA holds that the condition of pregnancy may not be singled out for special or different treatment when compared to other medical conditions of employees. Thus, if the pregnant employee is able to carry out every aspect of a job, then the employer must permit the employee to perform it; if the pregnancy or a condition related to the pregnancy does impede the employee’s ability to perform any aspect of the job, the employer must regard it as it would any other temporary disability.

Unlike the PDA, the FMLA is not specifically directed at pregnancy; however, the FMLA does cover pregnancy and conditions related to pregnancy. In general, the FMLA provides that an employee is entitled to up to 12 weeks of unpaid leave during a 12-month period for certain types of family-related medical leave, including leave related to pregnancy and childbirth.

The FMLA, however, does not apply to every employer or to every employee. The FMLA applies to employers who have had 50 or more employees in 20 or more workweeks in the current or preceding calendar year. Further, in order to be able to take leave, the employee in question must have worked at least 1,250 hours during the 12 months prior to the start of leave; the employee must work at, or within 75 miles of, a location where at least 50 other employees for that employer; and the employee must have worked for the employer for at least 12 months, although those 12 months need not be consecutive so long as they are not too far in the past.

California Laws Protecting Pregnant Employees: The Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA), and the Pregnancy Disability Leave Law (PDLL)

In addition to federal law protections, California law provides even more protection for pregnant workers, and California’s laws may apply to businesses that are not covered by federal employment laws. For example, California’s Fair Employment and Housing Act (FEHA), applies to employers who have five or more full-time employees over the prior year—a much broader reach than both the PDA and the FMLA.

In general, the FEHA is California’s anti-discrimination law, comparable to the federal Civil Rights Act. Among many other provisions, FEHA makes it unlawful for an employer to discriminate against or to harass an employee or prospective employee for being pregnant, or for requesting a leave associated with pregnancy or childbirth. Similarly, the California Family Rights Act (CFRA) is basically the state law version of the federal FMLA, and has almost the same coverage.

California’s Pregnancy Disability Leave Law (PDLL), however, provides an additional level of legal protections to pregnant workers in California. The PDLL requires employers to provide up to four months of leave for pregnant employees for whom pregnancy or pregnancy-related conditions cause an actual disability. This disability can be either during pregnancy or after a child is born, and includes everything from severe morning sickness to doctor-ordered bed-rest to actual childbirth, if, in a doctor’s estimation, the condition makes an employee unfit to perform their normal work. The PDLL applies regardless of an employer’s own short-term disability policy (that is, PDLL provides for disability leave even if an employer does not have a leave policy for other disabilities), and covers pregnant women regardless of how long they have worked for an employer. In addition, the law applies to both full-time and part-time employees; the “four month” time period is based on calculating the period of time the employee would actually work within the four month time frame, and the four month period need not be utilized consecutively.

An employee who takes a pregnancy disability leave under the PDLL and returns to work within the four-month time frame is guaranteed by California law the right to resume her same position. An employer may only reinstate the employee to a different position if the same position is no longer available, even if a temporary assignee performed the job better in the pregnant employee’s absence. Furthermore, the different position must be comparable, in terms of salary, job advancement, and other conditions.

Other Protections that May Be Available: An Employer’s Internal Company Policies

In addition to these state and federal laws, it is also important to be aware of any special considerations your particular employer may provide with respect to pregnant employees. In addition to adhering to applicable federal and state law, your employer should adhere in practice to any other provisions laid out in an employee handbook, and any departure from the employer’s stated policy with respect to pregnancy may indicate that you are being singled out for discriminatory treatment due to your pregnancy. Further, when an employer chooses to apply certain conditions or benefits to any employee for a non-pregnancy-related disability or medical condition, the employer may not lawfully single out a pregnancy-related disability for disparate treatment.

When Has an Employer Crossed the Line and Violated the Laws that Protect You?

While there is no hard and fast rule that defines when an employer has violated federal or state laws regarding discrimination or harassment for pregnancy, there are several things that can indicate that you may have a pregnancy discrimination claim.

Pregnancy discrimination may occur when an employer refuses to hire you because of a visible pregnancy or asks about pregnancy or child-bearing while you are seeking a job where those questions are not directly job-related. It may also occur if you are fired, demoted, laid off, or your salary is reduced or working conditions change (without request or medical need) after informing your employer you are pregnant or after you take maternity leave. Essentially, if it is apparent that an employer has no valid justification for taking an adverse action against you, and that action is taken in conjunction with your pregnancy or pregnancy-related disability, you may have a case for pregnancy discrimination.

Respecting harassment, pregnancy harassment is treated much the same as other forms of unlawful workplace harassment. It may involve physical, oral, or written conduct that is offensive or derogatory based upon pregnancy. This may consist of jokes, pictures, stories, comments, or inappropriate touching. Further, the harasser need not necessarily come from a supervisor or even from a male, but can come from other women, from co-workers, or even from customers or clients. As with other harassment claims, offhand or isolated offensive comments or gestures do not amount to harassment; instead, the conduct in question must be grave—it must be so frequent, severe, or pervasive that the conduct in question creates a hostile work environment for the pregnant employee.

When Should I Call an Attorney?

In addition to the general provisions set forth above, there are many other provisions of federal and California state law that spell out the rights and responsibilities of both employees and employers when it comes to pregnancy and pregnancy- or childbirth-related issues. Both federal law and state law provide broad protections to pregnant workers and workers who have recently given birth when certain specific conditions are met, and these different laws set out several types of damage awards to which an employee who has been discriminated against may be entitled, including punitive damages.

Given all these provisions and technicalities, as noted above, it is not always crystal clear when an employer’s conduct may amount to unlawful pregnancy discrimination or pregnancy harassment, or whether you have a case that is worth pursuing. If you are confronted by serious concerns as to whether your employer is meeting its legal obligations, or if you have questions about how to handle an ongoing or prospective employment situation related to pregnancy, contact The Nourmand Law Firm and consult one of our Los Angeles pregnancy discrimination attorneys to obtain legal information, assistance, and advice on how best to proceed, and to find out if you may have a case of pregnancy discrimination or harassment.

Your initial consultation is free, and there is no obligation to retain our firm, even if we conclude that you may have a good basis for a pregnancy discrimination or harassment case. Get the peace of mind you need and know your rights. Call The Nourmand Law Firm, APC at 800-700-WAGE (9243) or fill out our online form today.

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