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Discrimination Against Moms: When Is it Illegal?

Being a mom is already hard enough. Unfortunately, many working mothers find that their employers make it even more difficult by discriminating against them because they have children. In fact, full-time working moms are paid 26% less on average than full-time working dads.

That’s a clear sign that discrimination is at hand. However, addressing the issue under current laws is more complicated than it might seem. While California has some of the strongest worker protections in the country, they aren’t perfect. Here’s what you need to know about your rights as a working mother and when your employer’s actions cross the line into illegal discrimination.

Are Parents a Protected Class?

California residents are protected by both the federal Civil Rights Act and California’s Fair Employment and Housing Act (FEHA). These laws define protected characteristics employers may not use to discriminate against workers. FEHA is more comprehensive than the Civil Rights Act and names the following protected classes:

  • Race, color
  • Ancestry, national origin
  • Religion, creed
  • Age (40 and over)
  • Disability, mental and physical
  • Sex, gender (including pregnancy, childbirth, breastfeeding, or related medical conditions)
  • Sexual orientation
  • Gender identity, gender expression
  • Medical condition
  • Genetic information
  • Marital status
  • Military or veteran status

Being a mother is not itself a protected characteristic. However, gender, pregnancy and labor, marital status, and sexual orientation are. These characteristics often overlap with parenthood, so many situations in which a mother faces discrimination may also be due to their membership in a protected class. 

When Does Discrimination Against Parents Cross the Line?

Since California is an at-will employment state, employers may technically hire, fire, and promote or demote workers for almost any reason, including whether someone has kids. However, they cannot make these decisions based on protected characteristics. 

That is an important distinction. An employer can choose not to promote someone because they have children and are concerned they will not have time to do the job. It has to make this decision consistently, though, instead of giving people different opportunities along the lines of gender, marital status, or ability to become pregnant. Here’s how your employer’s behavior can cross the line and become illegal:


Women earn 83% of what men do when looking at people with full-time employment. So why does the gap expand when looking at parents? It’s because mothers earn less than childless women, while fathers make more than childless men. In other words, employers appear to penalize women who become parents while rewarding men. 

The root of the issue appears to be twofold. First, employers may have negative biases associated with mothers, assuming they prioritize childcare over their work performance. Second, many employers seem to have positive biases toward fathers, assuming they are more reliable and dedicated to their jobs. As a result, women receive fewer opportunities while men are given more. 

If this occurs within your company, it is a blatant form of discrimination. Your employer is treating people differently based on sex, barring women from receiving equal opportunities for raises and promotions granted to men. 


California explicitly defines pregnancy and childbirth as protected medical conditions. They are treated similarly to disabilities. 

Under FEHA, employers must grant pregnant workers reasonable accommodations such as altered shift lengths and schedules, stools, or modified duties for the duration of the pregnancy as long as it will not cause “undue hardship.” Furthermore, employers must grant eligible workers up to four months of pregnancy disability leave in addition to the twelve weeks of leave guaranteed under the CFRA. 

Your employer can require a doctor’s note regarding any accommodations or leave you request. However, it cannot deny your request as long as you provide a valid medical reason. Failing to do so, or retaliating against you for your request, is considered discriminatory. 

Protected Leave

Protected characteristics are the only grounds for discrimination claims in California. However, there are other types of protected activities employers must respect: namely, protected leave

California’s Family Rights Act (CFRA) guarantees up to 12 weeks of protected unpaid leave to eligible workers to care for themselves or others. Similarly, California Labor Code Section 230.8 permits eligible employees up to 40 hours of protected unpaid lead for school activities. 

If a parent requests or takes time off under these laws and their employer punishes them, that is unlawful. While it is not technically considered discrimination, it is considered retaliation and a violation of the worker’s rights directly connected to their status as a parent. 

What to Do If You Face Unlawful Workplace Discrimination

While California’s worker protection laws are strong, they do not prevent employers from discriminating against you. Instead, they give you the tools to fight back against discriminatory behavior. 

If you have experienced workplace discrimination for being a mother, it is your responsibility to take a stand. Here’s what you can do about retaliatory or discriminatory actions in the workplace:

  • Document the problems: Most types of discrimination result from ongoing behaviors and attitudes within a company. Collect evidence of discriminatory actions, such as emails from a manager complaining about your request for unpaid leave or performance reviews that negatively mention your status as a parent.
  • Talk to your colleagues: If you face discrimination, your coworkers likely do as well. Talk to them about pay, opportunities, and promotions to learn more about your employer’s decision-making. 
  • Report the issue to HR if possible: If you feel safe doing so, report discriminatory behavior to HR. Ideally, the department will fix the problem. If not, your report begins a paper trail documenting your concerns.
  • Consult with an experienced employment attorney: As with any discrimination, you should discuss your case with a dedicated California employment lawyer before taking legal action. Your lawyer will advise you on whether you have a claim and represent you in court if necessary. 

Don’t let your employer make motherhood even harder. If you’re in a discriminatory workplace, you can get help from Le Clerc & Le Clerc LLP. Our experienced attorneys are prepared to advocate on your behalf and ensure your rights are protected. Learn more about how we can help by reaching out to our San Francisco employment law firm for mothers today.

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