San Francisco Pregnancy Discrimination Lawyer

California law provides significant protection for pregnant employees.  In addition to prohibiting discrimination or harassment on the basis of pregnancy status, California law requires an employer to allow an employee disabled by pregnancy, childbirth or related medical conditions to take a leave of absence and to maintain her health insurance during the leave.  It also requires the employer to provide other forms of reasonable accommodation as necessary.  (Cal. Gov’t Code §§ 12926, 12940.)  The amendments to the pregnancy discrimination regulations that took effect at the end of 2012 expanded the protections in several regards, including an expanded definition of the conditions that may render a woman “disabled by pregnancy” and the extension of protections to employees perceived as pregnant or disabled by pregnancy (even if not actually pregnant).

The breadth of protections for pregnant employees under California law presents a challenge for companies and creates a number of varied issues and legal claims.  But one aspect of these laws that causes or contributes to some of the pregnancy-related issues we see has to do with a fundamental aspect of the laws that does not get a lot of discussion:  To comply with the laws and avoid claims for pregnancy discrimination, an employer must in some cases ignore reality, past experience, and common sense.

What is the Pregnancy Discrimination Act?

The Pregnancy Discrimination Act (PDA) was enacted as an amendment to Title VII of the Civil Rights Act of 1964. The PDA prohibits employers from discriminating against employees based on pregnancy, childbirth or related medical conditions. Public employers, such as federal, state and local government agencies, and private employers with 15 or more employees are covered by the PDA. According to the Act, employers may not have a policy, whether written or unwritten, against hiring pregnant women. Employers may not refuse to hire a woman because she is pregnant or because she has medical conditions related to her pregnancy so long as the woman is able to perform the essential functions of the job.

If a pregnant woman becomes unable to perform the essential functions of her job, the employer is required to treat her as a temporarily disabled employee. This means the employer must make the same accommodations as it would for an employee who cannot perform some or all of his or her job functions due to a temporary disability. This may include changing some of the job functions, having the pregnant employee perform alternative functions or offering the employee paid or unpaid leave.

Employers are not required to give pregnant employees preferential treatment. Their duty is to treat them equal with other employees and not to discriminate against them in any employment decisions because of the pregnancy. Employers have the right to terminate pregnant employees for excessive absences from work, even if those absences were caused by pregnancy-related reasons.

Pregnancy Issues vs. FEHA Issues

Workplace issues involving pregnant employees differ from other FEHA-related issues in at least two significant ways.  First, pregnancy discrimination claims rarely seem to involve an animus against pregnant women.  Although many workplaces probably have at least one cold and heartless manager impervious to the warm glow of impending motherhood, we rarely see cases in which an employer takes an action because of a dislike or animus toward pregnant women.  In fact, the exact opposite often holds true.  Problems frequently arise because a decision-maker acts in a manner that, even if not actually in the employee’s best interests, results from a misguided effort to help or protect the pregnant employee.  And because his or her good intentions often distract a decision-maker from considering applicable statutes and potential legal issues, problems may arise where the decision-maker tried to do what he or she thought best (as opposed to acting out of dislike, animus, etc.).

Question Your Assumptions

Claims relating to pregnancy differ also from other types of discrimination claims in that the assumptions an employer often makes when learning of an employee’s pregnancy can be well-grounded and accurate, but entirely unlawful nevertheless.  Unlike many other forms of discrimination based on unfounded, outdated, and inaccurate beliefs about particular races, national origins, religions, etc., pregnancy discrimination and other failures to comply with California law protecting pregnant employees stems from beliefs and experiences grounded in reality.  Consider a manager who learns that one of his or her employees is pregnant.  After congratulating the employee, the manager does what any good manager would do and thinks about how the pregnancy might impact the business.  Could the manager reasonably conclude that this employee might miss some work during her pregnancy because she does not feel well or has doctors’ visits?  Might the employee’s physical condition affect her attention and productivity (particularly during periods of morning sickness)?  Any chance that the manager might find himself or herself short-staffed because the employee takes a leave of absence?  How about after the leave?  Might the woman decide not to return to work and opt instead to stop working so she can devote herself fully to spending time with and caring for the baby?  And if the employee does decide to return to work after the leave, might she have less energy and focus given the demands of parenting a young child?  Finally, if she returns from leave, could the woman have a change in her career plans as a result of her status as a new parent or the parent to another child that might affect the business?

Anyone who has been pregnant or whose spouse has been pregnant, who has a friend or family member who is or was pregnant, or who knows even the basics of pregnancy and parenting would almost certainly answer “of course” to each of these questions.  So, too, would the manager.  And each of the issues reflected in the questions creates a potential issue with which the manager may need to deal going forward.

Conclusions and Predictions

In short, an employer might understandably make certain conclusions and predictions upon learning of an employee’s pregnancy about the impact on its business; conclusions and predictions perhaps made seemingly more reliable given that employer’s past experiences.  But however reasonable or accurate those assumptions may seem, they do not hold true in every – or perhaps even most – cases.  For every pregnant employee who misses a lot of work due to morning sickness, doctors’ appointments, etc., far more work straight through their pregnancy with no significant effect on their attendance or productivity.  For every woman who decides during the course of her leave that she will not return to work or will not return in a full-time capacity, far more return as planned and work at the same level as before the pregnancy.  So while the assumptions an employer may make about the effect of an employee’s pregnancy on her employment cannot be disregarded as outdated and unfounded, and will in some cases seem understandable given the employer’s history with pregnant employees, they by no means apply across the board.

California law effectively requires that an employer not act on those assumptions but to instead handle each situation as unique and not one in which the employer’s history might repeat itself (no matter how many times it has already done so in this regard).  To those of us who live in the world of employment law, this seems axiomatic.  To many companies and managers not as familiar with California law, making decisions that ignore past experiences and common sense may seem counter-intuitive and bad for business.  In handling issues related to pregnant employees, however, employers must to some extent ignore what has happened in the past with pregnant employees and resist making decisions based on what it expects to happen no matter how likely the predicted outcome.  A busy manager concerned about staffing, productivity, and meeting the needs of the business might understandably find it hard to do so.  But even an absence of any animus toward the pregnant employee and a singular focus on preparing for the very real possibility that the pregnancy and the employee’s post-pregnancy plans will adversely affect business will not necessarily protect the employer.  When dealing with pregnancy issues in the workplace, good intentions, fond feelings and reliance on past experience may not provide a defense.