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Introduction — California Protections for Pregnant Workers
California law offers strong protections to employees who have been subjected to discrimination and harassment. Despite that, pregnancy discrimination and retaliation for standing up to discrimination remain rampant. Once employees have been wrongfully terminated, they often know to reach out to seek legal help immediately. But current employees are often more confused about what to do. They may rightfully feel afraid about reporting unlawful conduct to Human Resources, particularly when the conduct is coming from their immediate supervisor. What if it just makes the situation worse? Indeed, far too often, Human Resources is more concerned with protecting the company than with taking the immediate corrective action that the law requires of them. A retaliating supervisor can make a job feel like death by 1,000 paper cuts: scrutinizing, criticizing, and nit-picking every action by an employee, making them feel ostracized or humiliating them in front of their peers, and leaving them in a constant state of fear and anxiety. Indeed, if true, the experiences of the Google employee whose memo went viral demonstrate the myriad ways that a company can fail its employees and allow discrimination and retaliation to persist.
An employee’s best hope is to be fully informed about their legal rights. They can then decide whether to report internally, to file a claim with one of the government agencies that investigates and enforces anti-discrimination laws, to seek private counsel to negotiate an exit or to file suit, or to make a conscious decision to wait (being mindful that if a person waits too long, they may forever lose their ability to assert the claim–a post on this topic will be forthcoming). To that end, I provide the following brief overview of employment protections for California workers subjected to pregnancy discrimination and retaliation. Note that many of these topics have been covered in greater depth elsewhere throughout the blog. (The archive categories are listed to the right of this post.)
1. Discrimination
The Fair Employment and Housing Act (“FEHA”) prohibits discrimination against employees because they belong to a protected category (sex, pregnancy, race, religion, disability, etc.). This includes refusing to hire or promote employees, terminating them, or discriminating against them in compensation or in terms, conditions, or privileges of employment.
2. Harassment
The FEHA further prohibits harassment against employees, applicants, unpaid interns or volunteers, and contractors because of their protected status. Employers are strictly liable for harassment by a supervisor. They are liable for harassment by non-supervisors, and even non-employees, if they knew or should have known of the conduct but failed to take immediate and appropriate corrective action. Employers are obligated to take all reasonable steps to prevent harassment from occurring. An employee need not lose tangible job benefits (e.g., be terminated or demoted) to establish harassment. More on workplace harassment can be found here.
3. Retaliation
The FEHA protects an employee who has “opposed any practices forbidden” under the Act.
An employee is engaging in protected activity when she opposes any practice that would violate the FEHA, even if the practice is not directed at her: “The ‘opposition’ clause protects conduct by an employee who is not the direct victim of a practice made unlawful under Title VII, but who ‘opposes’ such discrimination against others.” (Chin, et al., Cal. Practice Guide Employment Litigation (2019 The Rutter Group) ¶ 5:1527.) Thus, it is unlawful for an employer to retaliate against an employee who reports or otherwise opposes pregnancy discrimination. The FEHA separately imposes liability on an employer for failing to prevent retaliation.
An employee does not have to be right that discrimination actually occurred; they are protected if they had a good-faith belief of discrimination.
Employees also have protections under California’s general whistleblower protection statute, Labor Code § 1102.5, which protects employees from retaliation when they (1) disclose information that they reasonably believe to violate state, federal, or local laws or regulations, or (2) refused to participate in any activity that would violate state, federal, or local laws or regulations.This protection applies whether the employee complains (a) externally to a government or law enforcement agency or to a public body conducting an investigation, inquiry or hearing, or (b) internally to “a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance” (e.g., their manager or HR).
Employees are protected even if the disclosures were part of their job duties (so for example, a safety officer is still protected when speaking out about unsafe conditions). Family members of a person who has, or was perceived to have, engaged in protected activities are also protected from retaliation.
Despite these protections, research has shown that when discrimination or harassment is reported, the consequences can be dire: an estimated 75% of employees who speak out against workplace mistreatment faced some form of retaliation.
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You say it’s a “hostile work environment.” But is that workplace bully breaking the law? The answer may surprise you.
So your boss/supervisor is a jerk. He’s mean, abusive, and he talks down to you. He embarrasses you in front of others and he diminishes your work. You think he may be sabotaging you and intentionally setting you up to fail. Surely he’s breaking the law and you have a case, right?
Not necessarily.
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Did you ever wonder what’s in your personnel file? Do you know that you have a right to find out? What other documents are you entitled to see or copy? Below, I discuss the employment records you are entitled to get and share sample language for making such a request.
Labor Code § 1198.5 provides that (with limited exception): “Every current and former employee, or his or her representative, has the right to inspect and receive a copy of the personnel records. . . .
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In the below video, Ramit Mizrahi discusses some of the protections that California’s Fair Employment & Housing Act (“FEHA”) and the federal Americans with Disabilities Act (“ADA”) provide to employees with disabilities as they navigate a safe return to the workplace. She discusses reasonable accommodations and the undue hardship standard, and provides examples of how one can approach requesting accommodation in the workplace. The video was created on behalf of the California Lawyers Association on June 4, 2020.
Ms. Mizrahi’s video of her Facebook Live session with Lupus LA provides even more information, including about leave rights and additional protections.
While we hope that you find it helpful, this video is posted for informational purposes only and is not meant to constitute legal advice. Please consult with an attorney for your own situation.
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30 May '20
In the below video, taken from a Facebook Live session with the Lupus LA community on May 29, 2020, Ramit Mizrahi discusses the rights and protections that employees with disabilities have with respect to workplace accommodations and medical leave.
While we hope that you find it helpful, this video is posted for informational purposes only and is not meant to constitute legal advice. Please consult with an attorney for your own situation.
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With many businesses closing or shifting to virtual work due to the novel coronavirus pandemic, it can be confusing as a worker to understand what the laws are surrounding your rights and benefits as an employee. Below is a summary of protections and wage-replacement options available to employees in various scenarios related to coronavirus.
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21 Aug '19
Update 10/10/2019: Governor Newsom signed AB 9 into law today. AB 9 increases the time to file claims under the Fair Employment and Housing Act, Pregnancy Disability Leave Law, and California Family Rights Act from one year to three years. However, it does not revive previously lapsed claims.
Last year, we outlined several bills that California legislators put forth in response to the momentum of the #MeToo and #TimesUp movements. While Governor Brown signed many of these bills into law, he vetoed several important ones. Among the legislation he vetoed was AB 1870, a bill that would have given more time to employees to file employment discrimination claims. Given AB 1870’s broad support, was resuscitated as AB 9. Like its predecessor, AB 9 sought to extend from one to three years the time that employees have to file an administrative complaint with the Department of Fair Employment and Housing—the first step before being able to file a lawsuit.
Before delving into AB 9 and its impact, it is helpful to start with an overview of statutes of limitations and California’s administrative filing requirements for employment law claims.
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Less than a month before the movie “The Predator” was released, actress Olivia Munn learned that fellow actor Steven Wilder Striegel was a registered sex offender. She reported the information to the studio, and in response the studio pulled the scenes involving the actor. But, it turns out that The Predator’s director Shane Black was friends with Striegel and knew of his status as a registered sex offender before casting him in the movie. He never told Munn or anyone else involved in the production. And while the scene was cut, Munn has felt ostracism from her peers since she made her report.
This situation raises interesting questions about employers’ obligations to protect other employees and prevent sexual harassment. Below, I discuss some of the key laws that apply.
The Fair Employment and Housing Act Creates a Duty to Prevent Workplace Harassment
The California Fair Employment and Housing Act (FEHA), Government Code § 12940, prohibits workplace sexual harassment and other forms of harassment and discrimination based on protected categories. An employer is strictly liable for sexual harassment by a supervisor. It is also liable for harassment by coworkers, subordinates, and even nonemployees if it knew or should have known of the harassment and failed to take immediate and appropriate corrective action. An employer is also separately liable for failing to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
This means that an employer faces significant exposure under the FEHA if it knowingly employs a sexual harasser or sex offender and fails to take actions to protect its other employees from sexual harassment by that person.
Megan’s Law Establishes a Sex Offender Registry, But Limits the Use of Such Information in Employment To Protecting Persons at Risk
California’s Megan’s Law, Penal Code § 290.46, requires the California Department of Justice to maintain a website that identifies individuals convicted of specific sex offenses. The Megan’s Law Website includes the following information about the sex offenders listed in the registry: their name and known aliases, a photograph, a physical description, including gender and race, date of birth, criminal history, prior adjudication as a sexually violent predator, the address at which the person resides, and any other information that the Department of Justice deems relevant. Crimes that trigger a listing in the registry include: rape, sexual battery, sexual trafficking of minors, and sex crimes involving children. Certain sex offenders may apply to have their information removed from the website…
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21 Jun '17
What is sexual harassment? A lawyer’s response.
Sexual harassment is rampant in many workplaces. Sometimes it can take extreme forms (for example, sexual assault), but other times it can be created through offensive and inappropriate comments that a supervisor or coworker considers to be “just joking.” Unwanted sexual conduct and comments can turn an otherwise perfect job into a nightmare.
There are two categories of sexual harassment:
- Quid pro quo sexual harassment, and
- Hostile work environment.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment occurs when a supervisor or person with authority conditions an employee’s job or job benefits on the acceptance of sexual advances or conduct, or when the supervisor makes employment decisions based on whether the employee accepted the sexual advances/conduct. A supervisor can engage in quid pro quo sexual harassment in a number of ways, including with sexual propositions, graphic discussions of sexual acts, and sexual comments on the employee’s body.
It does not need to be explicit. For example, if a supervisor insinuates that an employee will have to sleep with him to advance in the company, that is quid pro quo sexual harassment. Having to submit to sexual advances–or even having to laugh along to someone’s inappropriate sexual jokes–should never be a factor in whether someone succeeds at work. . . .
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Given the election outcome, there is much uncertainty about the what the future holds for our country. Workers have many reasons to be concerned, particularly given that our President-elect will likely appoint and nominate people hostile to workers’ rights and civil rights to government positions, including to the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Supreme Court.
Fortunately, we in California are to some extent shielded from changes in federal laws in situations where there are California laws in effect that offer similar or broader protections. To give some examples:
- A California employee can usually sue for discrimination, harassment, or retaliation based on sex, race, and certain other protected categories under either the California Fair Employment and Housing Act (“FEHA”) or under Title VII of the Civil Rights Act of 1964 (“Title VII”). The FEHA covers employers with five or more employees for discrimination and retaliation, and one or more employees for harassment, and also allows individual harassers to be sued personally. Title VII applies to employers with fifteen or more employees and does not allow for individual liability. Title VII also contains caps on compensatory and punitive damages based on the size of the employer, while the FEHA has no such limitations.
- The FEHA explicitly prohibits discrimination based on “gender, gender identity, gender expression” and “sexual orientation,” while Title VII does not. The EEOC and a number of federal courts have taken the (logical and just) position that sexual orientation discrimination is a subset of sex discrimination and therefore prohibited under Title VII (as is discrimination against LGBT individuals in general), but there is a risk that with a change in the composition of the federal courts, we could regress in interpretations of federal law. Regardless, LGBT workers in California will remain protected.
- The FEHA and the Americans with Disabilities Act (“ADA”) offer similar protections with respect to disability discrimination. The FEHA is more protective of disabled employees and explicitly states that the ADA serves only as a “floor.”
- The California Family Rights Act (“CFRA”) and the Family and Medical Leave Act (“FMLA”) are two leave laws that have significant overlap in their coverage and protections. Again, CFRA offers more protections to California employees, particularly pregnant women who also take pregnancy disability leave.
- California’s Labor Code contains a number of protections regarding minimum wages, overtime pay, recordkeeping, and other employee protections, as does the Fair Labor Standards Act (“FLSA”). The California laws tend to be more protective (for example, providing that most non-exempt employees receive overtime for for all hours over 8 worked in a day, not just for all hours over 40 per week, and also requiring that employees receive meal and rest breaks).
- California has a number of laws that protect whistleblowers, including Labor Code section 1102.5 (a broad statute that protects all types of whistleblowing), Labor Code section 6310 (protecting employees who complain about workplace health and safety issues), and Health and Safety Code section 1278.5 (protecting employees who complain about patient health and safety issues). There are some overlaps with federal whistleblower laws.
As the previous paragraph demonstrates, our laws tend to offers greater protections and additional remedies as compared to federal employment laws. For that reason, most California employees choose to sue under the California laws when possible. In addition, asserting California (and not federal) claims allows employees to file and usually to keep their cases in state courts. There, an employee need only convince nine out of twelve jurors to find in his favor in order to win his case, in contrast to the requirement in federal court that the jury find for him unanimously. Judges in state court are also less likely to grant summary judgment and dismiss employees’ cases, and tend to give lawyers more time to try their cases.
We are fortunate to live where we do. The newly enacted Labor Code section 925 will ensure that employers cannot strip California employees of their substantive rights or force them to litigate/arbitrate their claims in out-of-state forums. Even if the courts and the nominees/appointees of the new administration will interpret federal laws in a manner that is less favorable to employees, California workers can continue to pursue their state claims, and can continue to push for even more progress in California.
Employment 101
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- Ramit Mizrahi has been recognized as one of the Top 100 Super Lawyers and Top 50 Women Super Lawyers in Southern California in 2023.
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