SAN FRANCISCO EMPLOYMENT LAW BLOG

Pregnancy and related health and childcare concerns have historically been among the biggest barriers women have faced while trying to enter the workplace. 

Up until the Pregnancy Discrimination Act (PDA) of 1978, just 45 years ago, it was still perfectly legal for companies to fire workers because they became or could become pregnant. Only this year, in 2023, did the federal government finally require employers to provide pregnant workers with reasonable accommodations in the Pregnant Workers Fairness Act (PWFA).

Laws like the PWFA show that conditions for expecting and new mothers continue to improve. However, states like California already guaranteed pregnant people the protections included in the PWFA and other federal laws. For example, Governor Gavin Newsom significantly expanded nursing mothers’ workplace rights back in 2020. Today, every California employer must grant employees time to express milk in clean and private surroundings. Failing to do so violates their workers’ rights and is a common example of discrimination against working mothers.

In other words, you have the right to take breaks at work to pump. Here’s what you should know about these rights, who’s covered by the state’s laws, and signs that you’re not getting the nursing time you’re owed under the law. 

Legal Requirements for California Lactation Breaks

California’s Labor Code is extremely specific about what employers must provide for nursing mothers. There are several criteria that employers need to meet to respect employees’ rights, including:

• Time: All employers must give workers breaks to pump breastmilk if necessary. This must be a “reasonable amount of time,” and it must be granted every time pumping is needed. This includes giving workers more break time than they would normally receive if necessary. However, employers do not need to pay for this extra time, and they can require workers to use their normal breaks concurrently with breastfeeding time.
• Privacy: Employers must provide a room or other private location shielded from view and not subject to intrusions or interruptions where employees can pump. This room must have a place to sit, a surface on which to place necessary supplies, and access to electricity. It must be near the employee’s workplace, and there must also be an accessible sink and refrigerator nearby to clean pumping devices and store the milk. 
• Cleanliness: The room provided by the employer cannot be a bathroom. It must be clean, safe, and free from hazardous materials.
• Freedom from harassment: Employers cannot require a doctor’s note or other proof that workers “need” to express breastmilk. They also may not harass or retaliate against workers who request or take lactation breaks. 

Furthermore, all employers must implement written policies regarding lactation accommodations. These policies must be provided to workers when hired and when they inquire about, take, and return from parental leave. 

Who Is Eligible for Nursing Breaks in California?

All employers in California are held to the standards listed above for lactation breaks. That means all employees have the right to take time to pump if necessary, regardless of gender. However, there are a few potential restrictions that are typically decided on a case-by-case basis. 

First, workers may only take lactation breaks to pump breastmilk for their own infant children. There is no strict time limit on how long this period lasts, but it is unlikely to extend past their child’s third birthday. Furthermore, employers are not obligated to offer this time if a worker is no longer lactating or feeding their children with the milk. 

Second, employers with fewer than 50 employees may be exempt from some requirements if they can prove they pose an “undue hardship” on the business. They must still provide the break time and make a reasonable effort to provide a safe and sanitary environment other than a toilet stall. However, these small businesses may not be required to provide a separate space with access to a seat, surface, electricity, privacy, or freedom from interruption. 

Signs You Aren’t Getting the Nursing Breaks You’re Due

Of course, just because an employer is legally obligated to give workers lactation breaks doesn’t mean they will actually do so. If any of the following issues sound familiar, your employer may be violating your right to take nursing breaks:

• You are not informed of your right to take lactation breaks, or your employee manual has no written policy.
• You’re required to get a doctor’s note or otherwise prove that you “need” to take these breaks.
• You aren’t permitted to take breaks as necessary. 
• The only place you can pump is in a bathroom stall. 
• You are instructed to pump somewhere without the necessary equipment. 
• You are not permitted or able to store your breastmilk on-site.
• You have to travel a significant distance to get to the approved pumping location. 
• You are harassed or face penalties because you need to take time to pump. 

Each of these situations violates your right to take breaks and pump in a safe and sanitary environment. You may have the right to file a claim against your employer to receive the breaks you’re owed and compensation for the time you’ve been denied, 

What to Do If Your Employer Doesn’t Grant Breastfeeding Breaks 

Breastfeeding is a natural part of human existence. If your employer refuses to offer you the breaks you need to pump and feed your child, it violates your rights under California law. 

You don’t have to accept this mistreatment, though. You can put your health and your baby’s nutrition first by holding your employer accountable for its unlawful behavior. The skilled pregnancy discrimination lawyers at Le Clerc & Le Clerc LLP can help. Our experienced employee advocates are prepared to protect your rights as an employee and a mother in court, if necessary. Schedule your consultation to discuss your working conditions and discover if you may have a claim.

The federal government has finally caught up to California in guaranteeing protections for pregnant workers. While the Pregnancy Discrimination Act (PDA) has existed since 1978, it only provided limited protection. However, with the signing of the Pregnant Workers Fairness Act (PWFA), all expecting mothers will receive the same rights in the workplace that California has guaranteed for years. 

The PWFA goes into effect on June 27^th, 2023. On that date, all eligible pregnant workers will receive the right to reasonable accommodations for issues related to their pregnancies. Failure by covered employers to grant these accommodations will be considered unlawful discrimination. This expands federal rights recognized under the PDA, such as freedom from harassment or negative employment actions. 

But this raises an important question: what does pregnancy discrimination actually look like? While California employees are already protected, many do not realize they are experiencing unlawful discrimination at work. Here’s what you should know about your rights as a pregnant employee in California, examples of common discriminatory behaviors, and what to do if your rights are violated.

New Federal Protections Reinforce California Anti-Discrimination Laws

For decades, the PDA was the only law protecting workers who had been, were, or could become pregnant. The law revised Title VII of the Civil Rights Act to include pregnancy discrimination as a form of sex discrimination. It covered current, past, and potential pregnancies as well as medical conditions related to them.

However, the PDA was implemented over a decade before the Americans with Disabilities Act (ADA) was written. As such, it did not include anything related to accommodations because, at the time, no one was guaranteed an accommodation for health conditions. 

Unfortunately, when the ADA was signed into law, pregnancy was not named in the bill. While conditions resulting from pregnancy could be considered disabilities, pregnancy was not. As such, workers did not receive the right to accommodations for typical pregnancy symptoms, like difficulty standing for long periods or needing more bathroom breaks. As long as employers could argue these needs made someone unfit for their job, they could be fired or face other negative employment actions.

California’s Fair Employment and Housing Act (FEHA) was written to account for this. It does not define pregnancy as a disability but identifies it as a separate reason for granting reasonable accommodations. With the PWFA, federal law is finally catching up. 

Examples of Discrimination Against Pregnant Workers

If you work in California, you benefit from the state’s many workplace pregnancy protections. However, you need to identify that you are being discriminated against before you can claim these protections. Some of the most common discriminatory acts against pregnant employees include:

Refusal to Grant Accommodations

A reasonable accommodation is a change to how tasks are usually handled at your workplace. These changes cannot put an “undue burden” on your employer, such as extreme costs or logistical difficulties. Examples of reasonable accommodations include: 

• Receiving closer parking
• Wearing an altered uniform
• Receiving extra breaks
• Having duties changed to avoid activities that would put the pregnancy at risk 

If your employer refuses to grant you accommodations that would allow you to perform your core duties, they may be discriminating against you. 

Retaliation for Requesting Accommodations

In addition to granting accommodations, employers cannot retaliate against workers who request them. For instance, an employer cannot dock someone’s pay to cover the cost of an accommodation. Similarly, they cannot remove duties or cut workers’ hours against their wishes because of the accommodation request. 

Termination for Taking Leave

Many workers need to take protected leave related to their pregnancy. California guarantees workers leave before and after labor under the California Family Rights Act and the Pregnancy Disability Leave programs. If an employer fires a worker for taking any form of protected leave, that is considered unlawful discrimination. 

Making Unrequested Changes to Employment 

Some employers may cut workers’ hours or change their duties when they become pregnant. This is often due to a misguided attempt to protect the staff member. However, employers have neither the responsibility nor the right to make these changes for their staff. If a worker requests these alterations, they are considered accommodations. If they are not requested, though, they are considered discriminatory actions. 

Harassment of Pregnant Workers

One of the most obvious types of discrimination is harassment. Common examples of pregnancy harassment include:

• Making repeated, unwanted jokes about the pregnancy
• Calling someone names or mocking them because of their condition
• Attempting to touch a pregnant person, particularly their stomach, without their consent
• Threatening or intimidating someone because of their pregnancy
• Disclosing private medical information without the employee’s consent

If an employee requests that these behaviors stop and the employer does not take action, the pregnant person may have grounds for a hostile workplace claim. 

Standing Up to Discriminatory Workplaces

Unlawful discrimination against pregnant workers remains all too common. The signing of the PWFA demonstrates that the issue is getting more attention nationwide, but more needs to be done. If you are working at a discriminatory workplace, you may have grounds to take legal action. Here’s how to get started:

• Collect evidence of the discrimination you face, like paystubs showing your hours were cut or communications refusing your accommodations.
• If you still work for your employer, file a complaint with your Human Resources department or manager about the behavior if you feel safe doing so. 
• Talk to an experienced employment law attorney about your rights and options. 

If you have questions or concerns, you can talk to the qualified California lawyers at Le Clerc & Le Clerc LLP. We have spent years representing employees suffering from harassment and discrimination, and we can assist you, too. Please schedule a consultation to discover how we can help you with a pregnancy discrimination claim today.