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Pregnant Workers Fairness Act: What Counts as Discrimination Against Pregnant Workers?

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 27th, 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.

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