pregnant worker contemplating her leave

Following Ramit Mizrahi’s August 7, 2019 appearance on AirTalk discussing workplace pregnancy discrimination and retaliation, she shares the following additional reflections and information for workers subjected to pregnancy discrimination and retaliation:

Additional Reflections

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.

4.       Pregnancy Protections

Under the Pregnancy Disability Leave Law (“PDLL”), an employer must provide an employee disabled by pregnancy, childbirth, or a related medical condition the following:

  • Up to four months of pregnancy disability leave with continuation of health coverage (unpaid, but they can use their accrued vacation/PTO);
  • Reasonable accommodations; and
  • A temporary transfer to a less strenuous or hazardous available position for the duration of the pregnancy if the employee requests and where it can be reasonably accommodated.

Disabled by pregnancy means unable to work, unable to perform one or more essential job functions, or unable to perform these functions without risk to self, the successful completion of the pregnancy, or to others. Examples include: needing time off for prenatal and postnatal care; severe morning sickness; gestational diabetes; Pregnancy-induced hypertension; preeclampsia; bedrest; childbirth; postpartum depression; loss or end of pregnancy; and recovery from childbirth, loss or end of pregnancy.

5.       Additional Leave—California Family Rights Act (50+ employees), New Parent Leave Act (20-49 employees)

In addition to pregnancy disability leave, new parents may be entitled to additional leave if they work for employers of a certain size and meet eligibility criteria. The California Family Rights Act provides eligible employees with up to 12 weeks of job-protected leave with continuation of health coverage for their own serious health condition (pregnancy, birth and related conditions are excluded), for that of a parent, child, spouse, or registered domestic partner, or to bond with a new baby (within first year, as well as time for adoptive or foster parents). Eligibility requirements: (1) 12 months of service, (2) 1,250 hours of service during the prior 12 months, (3) the employee must work at a worksite with at least 50 employees within 75 miles.

The New Parent Leave Act covers employees with 20-49 employees within 75 miles who have 1 year service, 1250 hours. They are eligible for 12 weeks of job-protected leave for bonding with new child within first year. More on the NPLA can be found here.

With respect to bonding leave, it can be taken intermittently. The minimum duration must be two weeks, except on two occasions an employee has the right to take such leave in increments shorter than two-weeks.

This means that a new mother may be entitled to nearly seven months of job-protected leave (4 months of PDLL plus 12 weeks of baby-bonding leave under CFRA or NPLA).

Separately, the State of California offers new parents six weeks of paid family leave, in addition to the disability payments new mothers receive during the time they are disabled due to pregnancy and childbirth recovery.

Yet, employees are afraid of retaliation and often cut short their leaves out of a fear of retaliation. Men in particular are afraid that if they take anything but a short leave to bond with a newborn baby, their commitment to the job will be questioned. In fact, while 85% of new dads take parental leave, the vast majority last only a week or two. When men are afraid to take parental leaves, it stigmatizes the leaves that women take.

Employees have claims when employers have interfered with their leave rights or when they have been subjected to retaliation for exercising those rights.

6.       Further Accommodation Obligations

The FEHA requires that an employer provide a reasonable accommodation for the known physical disability of an employee, unless the employer can demonstrate that doing so would create an undue hardship. “Reasonable accommodations include ‘[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . and other similar accommodations for individuals with disabilities.’” Additional leave also constitutes a reasonable accommodation.

Under the FEHA, an employee does not have to reveal a diagnosis to her employer to be entitled to a reasonable accommodation. Rather, she has to put the employer on notice that she may be suffering from a disability, i.e. that she is limited by some medical condition in her ability to work. Sometimes, employees need further accommodations as a result of pregnancy and childbirth-related complications, and the obligations to accommodate are triggered by both the PDLL and FEHA.

7.       Constructive Discharge

If an employer retaliates against an employee for reporting or opposing prohibited discrimination, harassment, or retaliation, and in the course of doing so, creates adverse working conditions that amount to a “continuous pattern” that are objectively intolerable, and the employee resigns, the employer may be liable for constructive discharge. Essentially, the employer is seen as having forced the employee to quit, such that the separation is legally considered the same as a termination. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238.)

Further reflections and information about pregnancy discrimination and retaliation was last modified: August 8th, 2019 by Ramit Mizrahi
Share this: