Pregnancy discrimination involves the unfair treatment of female employees due to pregnancy, childbirth, or any other related medical condition.
The Pregnancy Discrimination Act (PDA) of 1978 is a federal statute which makes it illegal for employers to terminate or take other disciplinary action against female employees on the basis of pregnancy, even in the event that pregnancy has caused the employee to become disabled. In that case, the employer must provide reasonable accommodation for the pregnancy-caused disability.
In California, employees of companies that employ five or more employees are protected against pregnancy discrimination, with a few exceptions. If you work for a religious institution, that protection may not apply to you, and sometimes also depending upon your marital status.
Should I notify my employer if I am pregnant?
You should immediately notify your employer that you are pregnant, and request the amount of maternity leave to which you are entitled. This prevents the employer from later trying to deny that knowledge. Once the employer has been properly notified, any future discipline or termination of a pregnant employee falls under high suspicion of pregnancy discrimination.
Female employees are often hesitant to disclose their pregnancies until they are two or three months pregnant. The irony is that in order to protect your job, the very best thing you can do is disclose your pregnancy at the earliest possible opportunity.
Early disclosure is important because employers most often notice when you are suffering the effects of morning sickness, or sharing the news of your pregnancy with your coworkers. Any time management knows of your pregnancy but hasn’t been formally notified, they can have plausible deniability. This allows them to fire you for an unrelated reason, and then deny any knowledge of your pregnancy.
For this reason, the best thing you can do when you become pregnant is to immediately notify your employer, in writing, and preferably from your own personal email account. This way there is proof that the notification was delivered, protecting you against pregnancy discrimination. Email is preferred over text messages, which are less desirable because they aren’t as durable as email. If you do use a text message to notify your employer, take a screenshot of your text message conversation, and then send that screenshot to your own personal email account, so you have a durable record of having informed your employer of your pregnancy.
Tell the employer that you are pregnant, your expected due date, and what accommodations you may need in order to keep working during your pregnancy. If your employer is a large organization, we recommend you notify by emailing the Human Resources Department. Alert them that you are pregnant, and ask about company policies regarding maternity leave. The employer or HR Department should respond that you are entitled to either FMLA (Family and Medical Leave Act) or CFRA (California Family Rights Act ) leave, and provide instructions on how to proceed.
In order to get those accommodations for your pregnancy, you may need a doctor’s note. If the accommodations are minor, many employers are willing to accommodate without a doctor’s note. However, if you need extended break times or mornings off, those kinds of accommodations typically require a doctor’s note along with your email notifying the office that you are pregnant.
If do not notify your employer of your pregnancy right away, the employer could claim they were not aware of it and thus could not possibly have breached the pregnancy discrimination act. It was simply a coincidence, they might say, that they decided to eliminate several positions, including yours. Their hope here is that your termination would not be classified as pregnancy discrimination.
What if I didn’t notify my employer in writing?
While it is always advisable to alert your employer or HR Department in writing to protect yourself against pregnancy discrimination, in many cases employees do not, for fear that they will be disciplined or fired.
If you told your employer that you’re pregnant verbally, without not documenting it in writing, the employer might claim they were never notified. In those cases, the employer’s knowledge of your pregnancy becomes the disputed issue of fact, and the crux becomes whether we can convince the jury to believe you over the employer.
However, this is seldom the case. Instead, employers will typically claim that while they were aware of your pregnancy, they had a different, legitimate, reason for a termination or disciplinary action. This false reason is called the employer’s pretext (invented reason) for firing you..
Common Pretexts for Pregnancy Discrimination
An employer’s pretext may cite work performance, disciplinary issues, or interpersonal issues with co-workers or other supervisors.
Other times, employers will say that you were fired because of a corporate cutback and that your position was eliminated. These kinds of arguments are often difficult for the employer to convincingly support because, for example, you are able to show that your position was necessary to the performance of the organization’s core functions. Or maybe you were replaced by another person after you were terminated.
We’ve even seen situations where a pregnant employee trained her replacement to perform the specific tasks associated with the position that was supposedly eliminated. There are thus a number of ways to prove that you were pregnant, the employer knew of your pregnancy, and you were terminated because of it.
Employers often undertake complicated schemes in order to discriminate against their pregnant employees. In one case, the employer, upon learning of the employee’s pregnancy, changed her title to Special Projects Coordinator and replaced her administrative position with a permanent replacement. After she returned from pregnancy leave, her employer cut the hours of the Special Projects Coordinator position. When that didn’t cause the employee to quit, they cut the pay of the position, and then ultimately fired the employee when she made a mistake.
While it’s not illegal for an employer to fire an employee who makes a mistake, it’s very unusual to fire a 17-year employee for one mistake. That fact, together with the fact that her hours and pay were both cut upon her return from pregnancy leave, were strong indicators of pregnancy discrimination.
An employer’s pretext for pregnancy discrimination can be overcome by showing you had worked for years, with positive annual employment reviews, or with other performance indicators showing there was no performance issue until you became pregnant. This is how an employee can demonstrate that the pregnancy was in fact the main factor for termination or other adverse employment action.
What are the FMLA and CFRA?
FMLA (Family and Medical Leave Act) is a federal law that guarantees certain employees up to 12 work weeks of unpaid leave each year ,with no threat of losing their jobs. FMLA also requests that employers covered by the law maintain the health benefits for eligible workers just as if they were working.
CFRA (California Family Rights Act) leave is the California version of FMLA, available to employees who have worked for a company with more than 50 employees for over one year. If you work at the post office, you have to take FMLA leave, because that’s a federal employer. On the other hand, if you work at any other private organization or even a state governmental agency, then CFRA leave is more beneficial to employees.
Sometimes smaller employers also allow FMLA leave even though they are not required by law to do so. As a benefit of employment, those employees are still protected by the CFRA law, meaning their positions are protected against employment discrimination for up to 12 weeks of leave.
Can I be fired for taking maternity leave?
No, you cannot legally be fired for taking maternity leave. California employers are strictly prohibited from employment discrimination against people due to pregnancy. If you are fired or disciplined because of your pregnancy or for taking maternity leave, you can sue your employer for pregnancy discrimination.
California juries are generally sympathetic to employees who have been victims of employment discrimination, and especially if they were fired while pregnant or because of their pregnancy. California juries are very motivated to protect a woman’s right to take maternity leave and provide for her child.
The law is also very accommodating to pregnant employees’ efforts to demonstrate that pregnancy was a substantial motivating factor in a disciplinary action, demotion, or termination at the hands of the employer.
We highly recommend that if any of these situations do occur while you are pregnant, you contact an experienced employment lawyer to evaluate your case against pregnancy discrimination.
CFRA & FMLA Certification
CFRA and FMLA certification are medical confirmations that employees need to obtain in order to take leave under each of these acts. Any time leave is requested under these acts, the employer is entitled to require its employees to show certification in order to have their leave requests approved.
If you work for a small employer, you need to make sure you get a CFRA or FMLA certification signed by the employer and your doctor within 15 days of your leave request. Not all medical leaves are CFRA or FMLA-qualified medical leaves, however. In order to designate your medical leave as a CFRA or FMLA leave, a specially designed form must be completed.
Certain companies use specially designed forms for CFRA leave. If your employer is not one of those employers that uses the specially designed form, a generic CFRA leave form is available from the State of California Employment Development Department (EDD) website.
What is the Pregnancy Disability Leave Law (PDLL)?
The Pregnancy Disability Leave Law applies beyond the 12th week of CFRA leave. With your doctor’s certification, no matter how long you’ve worked for your employer, you can take up to four months of Pregnancy Disability Leave. This applies in the case that your doctor certifies your pregnancy as dangerous to you or to your fetus or even after you deliver, and if you are still recovering from the effects of your delivery or cesarean section.
Pregnancy Disability Leave can be used in combination with CFRA leave, giving a pregnant employee up to four months of Pregnancy Disability Leave followed by up to 12 weeks of CFRA leave. Together, that’s almost seven months off. In addition to all of this, there are laws that protect pregnant employees from pregnancy discrimination in the state of California.
What Is the Interactive Process?
When you are pregnant, sometimes you need a modification of your duties due to the effects of pregnancy. You might need mornings off when you’re suffering from morning sickness, lengthier bathroom breaks, or more frequent breaks. The interactive process is required of the employer once they know that you are suffering from a disability, even a temporary disability like pregnancy. What triggers the interactive process is a doctor’s note. These kinds of small accommodations are something that every employer must provide its pregnant employees, once they are informed of the need to do so. Oftentimes, employers skip the interactive process and this is one way we can prove that the employer failed to accommodate a pregnancy.
What Are Examples of Reasonable Accommodation?
When you are pregnant, you may need certain differences in your job description or work hours. You may need time off when you’re suffering from the effects of your pregnancy, like morning sickness, preeclampsia, or early onset labor. You might need bed rest. Your doctor will have to prescribe any such accommodations that you need. Once on notice of those needs, your employer is required to accommodate you. Other types of accommodations might be light duty assignments or lifting restrictions.
Employees who work as dental assistants, for example, are normally required to take patient’s X-rays, but those X-rays have the potential to harm their unborn child. It’s very typical for doctor to provide that dental assistant with a work restriction against performing X-rays. The dentist sometimes finds it very difficult to accommodate that restriction, but they are required to do so, even if it means taking all the dental X-rays themselves. Taking X-rays is a minor part of a dental assistant’s job duties. The dental assistant can still set up the X-ray, put the lead blanket across the patient, and position the film in the right place. When it comes time to take the X-ray, she has to be allowed to be relieved from that duty. Since it’s so inconvenient for the dental office, sometimes they’re motivated to terminate that employee on a pretext. A pretext is a lie based on a false reason to fire an employee.
Employers go to extremes to avoid accommodating pregnant employees both because doing so is inconvenient and expensive for the employer, and because there is some belief on the part of the employer that the employee will be less dedicated to work once she has a newborn baby. The key is that employers are required to provide reasonable accommodations, which might include taking away some of the non-essential part of your job duties. As long as you can define a way that the employer would be able to do that, the employer might be required to do so.
What Should I Do if My Employer Refuses to Give Me Time Off for Morning Sickness During My Pregnancy?
Reasonable accommodations, like time off for morning sickness, is a requirement of an employer who employs five or more people and is on notice of your pregnancy. Failure to accommodate would be looked upon by the court and the jury very negatively. Pregnancy cases are absolutely loved by jurors because you have a prospective mother looking to support her family by working during her pregnancy. Juries appreciate and value that contribution both to her family and to society. They punish an employer who gets in the way of that by virtue of its selfishness and unwillingness to accommodate very reasonable requests.
What Should I Do if My Employer Refuses to Give Me Time Off or Light Duty Due to Pregnancy?
Employers with five or more employees in California are required to make reasonable accommodations for a pregnancy once they’re on notice of the pregnancy, particularly when a doctor’s note supports the employee’s request. Assuming those facts are in play, an employer would be looked upon very negatively for its failure to accommodate a pregnant employee or to allow that employee protected leave. The laws in California allow pregnancy disability leave for up to 4 months. This is in addition to the paid family leave time, or in the case of a large employer, FMLA time, to which an employee who is pregnant would be entitled.
A large employer of 50 or more would be required to give seven months of combined leave to a pregnant employee. It would be four months of pregnancy disability leave, in the case of an employee disabled by pregnancy, and then 12 weeks of FMLA time for recovery from delivery. As long as you are able to return to work after that seven month period of time, your employer is absolutely required to hold your job open.
Sometimes, employers will suggest that your position was eliminated for reasons not associated with your pregnancy. For example, they lost a project that you are working on and they are no longer able to maintain that position because they are no longer performing that project. If your employer normally takes on and loses different projects in the course of their business, you can show that other projects would have come and gone, and that the “elimination” of your position was a lie designed to disguise pregnancy discrimination.
These cases produce a great deal of sympathy from juries and are very lucrative. If your employer refuses to accommodate your need for time off for pregnancy, you should contact an employment lawyer right away. We understand the lengths that employers are sometimes willing to go to in order to avoid accommodating pregnant employees. We will do whatever it takes to prove that that’s what was going on in your case.
What Do Employers Do to Try to Get Away With Firing Pregnant Employees?
Employers go to great lengths to find excuses to terminate pregnant employees because it is very expensive and very inconvenient to accommodate pregnant employees. Employers often hear of an employee’s pregnancy through their coworkers. Don’t assume that just because you haven’t formally told your employer that you are pregnant that your employer doesn’t already know of your pregnancy. Employers who know of a pregnancy, yet have not formally been put on notice of that pregnancy, will create a false reason to terminate that pregnant employee before they can give notice of the pregnancy.
The best defense to pregnancy discrimination is that the employer didn’t know the employee was pregnant. Obviously, this does not work when the employee is six months along and visibly pregnant at the time of her termination. In most cases, employees are not visibly pregnant, are terminated for false reasons, and are shocked because they don’t understand that the employer was really engaging in a scheme to eliminate them before they were able to put them on notice of their pregnancy. In other cases, employers will go through complicated processes to eliminate positions, or find excuses based on work flow, sales, or customer complaints in order to terminate a pregnant employee.
If you’re pregnant, and all of a sudden, your employer says that you’re fired because a customer complained about you, it may not be true. Other examples might be claims that sales have slowed and your position has been eliminated. Employers are willing to go through a lot of effort to avoid accommodating pregnant employees. The best thing that you can do to protect yourself is to call an employment lawyer as soon as you realize that pregnancy discrimination is at the heart of your employer’s decisions about your termination or your requests for accommodations during your pregnancy.
Can I Still Sue for Pregnancy Discrimination if I Am a Union Member?
Union members are just as protected against pregnancy discrimination as non-union members. The union might try to tell you that you need to file a grievance and go through an arbitration proceeding, or a grievance procedure. Pregnancy discrimination does not have any such legal requirement. It’s important that you file a timely complaint with the Department of Fair Employment and Housing and or the Equal Opportunity Employment Commission. Those complaints are something that an employment lawyer should take care of on your behalf. As long as your termination, failure to accommodate, failure to provide medical leave, or retaliation for taking leave is due to a pregnancy, there is no reason that you cannot sue.
Can I Still Sue for Pregnancy Discrimination if My Employer Had Me Sign an Arbitration Agreement?
There is a trend on the part of employers to require their employees to sign arbitration agreements. This is because arbitration is more likely to go in the employer’s favor than a lawsuit is. In order to reduce the chance of a big loss in court, employers are finding it cost effective to pay for arbitration and to get its employees to agree that they are willing to waive a jury. In those cases, the first thing we do is try to fight the arbitration agreement. We’ll file your complaint in court, just as we would had you not signed an arbitration agreement, in the hopes that we might be able to beat the arbitration agreement.
Beating the arbitration agreement is something that’s evaluated on a case by case basis, depending upon the actual terms of the arbitration agreement. Over the years, the law has evolved and sometimes employer’s arbitration agreements are not kept up to date with the law. We may be able to get the court to agree that you should not be required to arbitrate your pregnancy related lawsuit with your former employer. Even in cases where the court upholds the arbitration agreement, we are often able to change or define the terms of that arbitration before an arbitrator who has a reputation for neutrality. The problem with arbitration is that many arbitrators do not have a reputation for neutrality in their decisions. That is what creates the imbalance that arbitration presents for employees and that is why we fight arbitration whenever possible.
What Type of Damages Can Be Recovered in a Pregnancy Discrimination Lawsuit?
There are three major kinds of damages that can be recovered in a pregnancy discrimination lawsuit. The most obvious is lost wages. When your employer terminates your employment because of your pregnancy, you’re no longer getting paid. Those wages that you would have earned are one measure of the damages that you can recover. If, as a result of your termination, you become depressed or begin suffering anxiety symptoms associated with your wrongful termination, any medical or psychiatric costs associated with treatment for those conditions are recoverable. In addition to that, the biggest type of damage that an employee can be compensated for in a pregnancy discrimination lawsuit is emotional distress.
The emotional distress caused by worrying about how you are going to support your baby and your family, worrying about whether you can find a new job while you are pregnant, and mourning the loss of those friendships you established while you were working for your former employer are all part of the emotional distress that you suffered as a result of pregnancy discrimination. In addition, if we can show that a managing agent who sets policy at your company was in any way responsible for the decision to terminate your employment because you were pregnant, you will be entitled to punitive damages.
Punitive damages are not based on how you’ve suffered. They are damages designed to punish the employer for its illegal behavior in terminating a pregnant employee because of her pregnancy. Those kinds of damages, in the case of large employers, can be very large. Big verdicts are still possible without punitive damages but where you see punitive damages, the numbers can be even greater because the amount of the punitive damages awarded is based on the employer’s net worth. The best thing you can do is call an employment lawyer as soon as you believe you’re being retaliated against for taking pregnancy leave or being discriminated against because of your pregnancy.
Wrongful Termination Law Group can help you fight pregnancy discrimination
Our firm has a wealth of experience in dealing with pregnancy discrimination and retaliation cases. In the last ten years we’ve handled more than ten pregnancy discrimination lawsuits and most recently obtained an $800,000 settlement for a pregnant client who was fired from her job of just two years prior to giving birth.
If you have been a victim to employment discrimination, you should contact our firm right away. Our experienced Los Angeles pregnancy discrimination lawyers will work closely with you to make sure that your case against pregnancy discrimination is settled and won.