SAN FRANCISCO EMPLOYMENT LAW BLOG

In recent years, there has been a significant shift towards recognizing and supporting the rights of breastfeeding mothers in the workplace. This recognition is not only a matter of public health but also of gender equality and workers’ rights. As more mothers choose to continue their careers while breastfeeding, understanding the legal frameworks that protect this choice is crucial. Below, we shed light on the laws that safeguard breastfeeding mothers at work, identify what may constitute a violation of these rights, and offer guidance on how affected individuals can seek assistance.

Understanding Your Rights

In the United States, the primary legislation supporting breastfeeding mothers in the workplace is the “Break Time for Nursing Mothers” provision of the Fair Labor Standards Act (FLSA). Enacted in 2010, this law requires employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth. In addition, employers must furnish a place, other than a bathroom, shielded from view and free from intrusion, for employees to express breast milk.

While the FLSA’s protections are a significant step forward, they have limitations. For instance, the law applies only to non-exempt (hourly-paid) workers. Although many states have enacted laws that expand these protections to include exempt (salaried) employees, the coverage can vary significantly from one state to another.

State-Specific Laws

Many states and local jurisdictions have passed laws that strengthen or supplement federal protections for breastfeeding employees. For example, states like California require employers to provide lactation accommodations for a longer period than the federal mandate of one year. Other jurisdictions have laws that apply to smaller employers not covered by the FLSA or offer protections for salaried workers. Breastfeeding mothers must familiarize themselves with the rules specific to their state or locality, as these may provide additional rights and protections.

Recognizing Violations

Examples of violations of workers’ rights to breastfeed in the workplace encompass a range of actions or inactions by employers that fail to comply with federal and state laws designed to protect nursing mothers. These violations can significantly impact a mother’s ability to continue breastfeeding while returning to work and can create a hostile or unsupportive work environment. Here are some common examples:

1. Inadequate Break Time: Employers fail to provide reasonable break times for mothers to express breast milk. According to the “Break Time for Nursing Mothers” law, employers must allow a reasonable amount of break time as frequently as needed by the nursing mother for up to one year after the child’s birth.
2. Lack of a Private Space: Employers do not provide a space for expressing breast milk that is private, clean, and free from intrusion. The law specifies that this space cannot be a bathroom and must be shielded from view.
3. Discrimination or Retaliation: Employers discriminate against, retaliate, or take punitive actions against nursing mothers who request or use lactation accommodations. This can include demotions, reduced work hours, unwarranted discipline, or even termination.
4. Failure to Communicate Policies: Employers do not adequately inform employees of their rights to breastfeed or express milk in the workplace, leading to uncertainty and potential violations due to ignorance of the law.
5. Inflexible Work Schedules: Employers refuse to allow any flexibility in the work schedule of breastfeeding mothers, making it impractical or impossible for them to express milk at needed intervals or manage breastfeeding schedules effectively.
6. Denial of Requests for Accommodations: Employers outright deny requests for necessary accommodations related to breastfeeding or expressing milk without engaging in any form of reasonable accommodation process.
7. Insufficient Support Facilities: Even when a space is provided, it might be inadequate—lacking in cleanliness, privacy, or accessibility. Examples include spaces that are not consistently available, are too far from the employee’s work area, or are improperly maintained.
8. Harassment: Creating a hostile work environment through negative comments, jokes, or other forms of harassment related to an employee’s need to breastfeed or express milk.

These examples not only represent legal violations but also undermine the efforts to support maternal and child health, as well as work-life balance for working mothers. 

Seeking Help and Enforcement

If you believe your right to lactation breaks has been violated, the first step is to document the issue thoroughly. Keep detailed records of your requests for accommodations and any responses or actions taken by your employer. If possible, communicate your needs and any problems in writing to create a paper trail. Options for getting help include:

• Direct Dialogue with Employers: Often, issues can be resolved by having an open and honest conversation with your employer. Many employers may not be fully aware of the laws or understand the needs of breastfeeding employees.
• State Labor Departments: For advice or to file a complaint, your state labor department can be an invaluable resource, especially as state laws may offer broader protections than federal law.
• The U.S. Department of Labor: The Wage and Hour Division of the U.S. Department of Labor is responsible for enforcing the “Break Time for Nursing Mothers” law. They can provide guidance and, if necessary, intervene on your behalf.

If your rights have been significantly violated, consulting with an attorney who specializes in labor law or women’s rights can be a critical step. Legal professionals can offer advice, negotiate with employers, or initiate legal action if required.

Get Help Exercising Your Right to Breastfeed in the Workplace

Balancing work and breastfeeding is a challenge that no mother should face without support. Understanding your legal rights is the first step in ensuring that you can provide for your child without compromising your career. While the legal landscape offers substantial protections, awareness, and advocacy are key to ensuring these rights are fully realized and respected. If your rights are infringed upon, remember that there are resources and legal pathways available to help you navigate these challenges and secure the accommodations you deserve. You can schedule your consultation with the experienced attorneys at Le Clerc & Le Clerc LLP to discuss your concerns and learn more about your options to pursue legal action for breastfeeding discrimination at work.

According to the Equal Employment Opportunity Commission (EEOC), not even other branches of the federal government are above fair employment standards. In a remarkable ruling, the EEOC’s Office of Federal Operations director ruled that a pregnancy discrimination class action lawsuit against the Homeland Security Department’s Customs and Border Protection (CBP) agency may proceed.

The initial lawsuit was filed by current and former workers of CBP who had been pregnant during their employment there. According to the plaintiffs, the agency required all pregnant workers to surrender some duties and transition to temporary light duty status. They argue that this violates their rights under both CBP policy and the 1978 Pregnancy Discrimination Act (PDA), which both state that pregnant employees should only be placed on light duty if they request it. The plaintiffs report that the forced transition to light duty had discriminatory consequences, including:

• Fewer opportunities to receive overtime
• Reduced chance for promotion
• Less access to professional training and development
• More difficult scheduling
• The loss of the right to carry a firearm and the later requirement to requalify to carry a firearm

Furthermore, they claim that non-pregnant staff who were placed on light duty were treated differently because those workers typically requested the transfer. In contrast, pregnant employees allegedly never had the opportunity to demonstrate their ability to carry out their duties. 

More than two dozen women have so far signed onto the class action lawsuit. It was initially certified to proceed by a regional EEOC judge, but CPB used its discretion to reject that decision and appeal. The agency argued that since it was against policy for pregnant workers to be forced onto temporary light duty, the complainants “lacked commonality” and also that they failed to prove that other women had faced similar discrimination. 

However, the EEOC rejected the appeal and recertified the lawsuit. The recertification ruling made it clear that a consistent discriminatory pattern of behavior may be grounds for a class action regardless of whether it is against an organization’s written policy. It further stated that the consistent pattern identified by the complainants constituted commonality and indicated there were likely other victims. 

The case is an excellent demonstration of how pregnancy discrimination claims may become necessary and how they can proceed even if an employer disputes the claim. If you have faced similar discrimination for your pregnancy, your employer may be violating your rights. 

Your Rights as a Pregnant Worker

Both state and federal laws protect pregnant people’s rights to work. For example, under the PDA and the Pregnant Workers Fairness Act (PWFA), an employer must treat pregnant workers any other employee with similar abilities. If a pregnant person can still perform all their normal job duties, the employer cannot treat them differently due to their pregnancy against their wishes. Meanwhile, pregnant employees who cannot perform some of their duties must be treated like any temporarily disabled employee.

California laws also grant expecting mothers the right to fair employment regardless of pregnancy status. This includes individual rights such as:

• The chance to take up to four months of pregnancy disability leave if medically necessary.
• The opportunity to request a transfer to light duty for the duration of the pregnancy.
• The ability to request reasonable accommodations to continue performing their normal duties.
• The protection from adverse employment actions and discrimination due to the pregnancy. 

When the rights listed above are violated, the violation is considered pregnancy discrimination. Examples of unlawful workplace pregnancy discrimination include:

• Firing, demoting, or involuntarily altering a worker’s duties because they became pregnant.
• Refusing an employee’s request for light duty that would be granted to a similarly temporarily disabled male employee.
• Refusing to provide reasonable accommodations for the duration of their pregnancy.
• Denying protected leave for covered employees.
• Retaliating against a worker who requests accommodations, takes protected leave, or reports a pregnancy discrimination incident.

How Pregnancy Discrimination Negatively Affects Working Parents

The purpose of pregnancy and disability protection laws is to ensure all workers have access to fair employment based on their abilities and protect them against bias. Expecting mothers are frequently subject to significant workplace discrimination due to societal biases against women. 

Unfortunately, this can make it significantly harder for working parents to support their families. Some of the most harmful impacts of workplace pregnancy discrimination include:

• Being forced out of the workforce: People who are wrongfully terminated or face other adverse employment action due to pregnancy are less likely to remain in or re-enter the workforce, preventing them from financially supporting their families.
• Receiving lower performance evaluations: Many expecting mothers face discrimination due to their need for protected leave and accommodations. Biased supervisors may rate their performance lower than workers with similar abilities who are not expecting. 
• Receiving fewer career opportunities: Expecting and current mothers often struggle to receive the same opportunities for advancement, often due to assumptions that they are less dedicated to their careers or have less time to train or take on new responsibilities.
• Reducing lifetime earnings: Because of all the issues above, many mothers face lower overall lifetime earnings than their peers. 

These types of discrimination prevent pregnant workers from fully realizing their career goals and may permanently depress their economic opportunities and those of their families. That’s exactly why pregnancy discrimination is considered unlawful. 

Experienced Legal Counsel for Workers Experiencing Pregnancy Discrimination

You have options if you have experienced discrimination such as forced reassignment to light duty due to a pregnancy. At Le Clerc & Le Clerc LLP, our skilled attorneys have decades of experience pursuing justice for workers experiencing discriminatory or retaliatory action by their employers. Schedule your free consultation today to discuss your needs and learn more about how we can help you achieve compensation for your employer’s unfair actions.

The fact that pregnant workers are often subject to discrimination in the workplace is no surprise to most people. However, retaliation against pregnant workers is less well-known. It can be just as damaging as discrimination, though. 

Under state and federal law, workplace discrimination and retaliation involve “adverse employment action.” This can include firing or demoting workers, changing their job duties or schedule to something worse, or negatively and concretely affecting their employment. The difference is that discrimination occurs because of protected characteristics, such as gender. In contrast, retaliation occurs because of protected actions like taking protected leave. 

If you’ve struggled with your employer after becoming pregnant, you might be facing retaliation in addition to discrimination. Below, we explain four lesser-known types of retaliatory employment actions against people and what you can do to get help and fair employment. 

4 Lesser-Known Signs of Retaliation Against Pregnant Employees

As a pregnant person, you have a variety of employment rights under laws like the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and the California Family Rights Act (CFRA) and Pregnancy Disability Leave Law (PDLL). These laws allow you to take time off work for things like medical appointments, temporary disability, and parental leave. They also permit you to request temporary modifications to your job duties if necessary to ensure a healthy pregnancy. 

Requesting accommodations or taking medical, parental, or disability leave are protected actions. If your employer takes adverse employment actions against you as a result, it has committed retaliation. Four serious but lesser-known examples of pregnancy-related retaliation include:

1. Having Medical Appointment Leave Denied

Under US law, you can take unpaid medical leave as long as you meet a few criteria. If your employer is covered by the CFRA and you’ve worked for them for at least 1250 hours over the past twelve months, you likely qualify. Eligible employees can take up to 12 weeks of unpaid leave over a rolling 12-month period to care for a serious health condition. This includes taking time off work to attend medical appointments related to pregnancy. 

If you qualify, your employer cannot deny you reasonable requested leave. A reasonable request must be:

• Related to care for a pregnancy or serious health condition
• Made at least 30 days before leave is necessary, if possible
• If 30 days’ notice isn’t practicable, a request must be made as soon as possible

If you meet these criteria and your employer denies your request for medical time off, they are violating federal employment law, and you may be experiencing retaliation. 

2. Having Job Duties Altered Involuntarily

Federal and state laws now treat pregnancy similarly to disabilities and other health conditions. One of the key requirements within the Americans with Disabilities Act (ADA) is that disabled workers are granted reasonable accommodations for their health conditions but otherwise treated equally to other employees. For example, a cashier who cannot stand for long periods must be provided a stool. However, the employer cannot transfer them to a different department just because of their disability.

The same is true for pregnant people under the PWFA. You may request reasonable accommodations while expecting, such as temporary alterations to your duties or an altered work schedule. However, as long as you can perform the basic tasks of your job, your employer cannot change your responsibilities just because you’re pregnant or requested unrelated accommodations. 

3. Receiving Poor Work Evaluations

You have the right to protected leave and reasonable accommodations while pregnant. Your employer cannot take these items into account when evaluating your work. Examples of unlawful retaliatory work evaluations include:

• Counting your protected leave time as days missed under company disciplinary attendance policies.
• Comparing your output and results to those of people who did not take medical leave without adjusting for the time you were gone. 
• Describing requests for accommodations as making you “difficult to work with” and lowering your evaluation score because of it.

Even an evaluation that doesn’t directly reference your pregnancy can be retaliatory. If you get a particularly negative review after your pregnancy leave despite years of good reviews, it may be considered retaliation. 

4. Being Made Redundant

Most employers know they can’t fire workers just because they become pregnant or request leave and accommodations. However, pregnancy does not make you immune to layoffs and redundancies. Some employers attempt to get around disability and medical leave protections by labeling disabled or pregnant workers “redundant” during other layoffs. 

You have not necessarily experienced retaliation because you’re made redundant and laid off after requesting or taking leave. However, if you’re terminated after experiencing other instances of retaliation or discrimination, you may have a strong wrongful termination case.

How to Get Help With Ending Pregnancy Retaliation

The last thing you need as an expecting or new parent is to fight your employer over fair treatment. However, it may be necessary if the company treats you poorly because you exercised your right to accommodations or protected leave. 

The best way to get started is by getting help. You can contact the experienced pregnancy retaliation and discrimination attorneys at Le Clerc & Le Clerc LLP. We are prepared to help you build your case against your employer by:

• Demonstrating your need for accommodations or leave. We can help prove your health needs by getting doctors’ notes, medical records, and expert witness testimony. 
• Gathering evidence of retaliation: We will use our decades of experience and knowledge to demonstrate how your termination, negative evaluation, denied leave, or altered duties constitute retaliatory behavior. 
• Handling negotiations with your employer: Many cases never go to trial and settle instead. We work to help you achieve the best possible settlement with your employer. 
• Representing you in court if necessary: Our skilled trial attorneys are prepared to litigate your case if your employer refuses to negotiate.

Don’t let your employer’s bad behavior ruin your career and finances. Schedule your consultation with our pregnancy discrimination law firm to discuss how we can help you take a stand against unjust discrimination in the workplace. 

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.