Pregnancy Discrimination - San Francisco Employment Lawyer

When Is Postpartum Depression a Disability in California?

On Behalf of Le Clerc Le Clerc LLP
September 19, 2023
Disability Discrimination, FMLA, Pregnancy Discrimination

Postpartum depression is often dismissed as a condition that describes new parents who feel tired and overwhelmed. However, it’s a much more serious and widespread condition than many people realize. According to the CDC, about one in eight new mothers will experience postpartum symptoms during or after their pregnancy.

Mothers experiencing postpartum depression describe feeling guilty and worthless; many even experience suicidal ideation. These emotions and the physical symptoms that accompany depression can be debilitating, making it harder to accomplish daily care tasks, much less go back to work.

Luckily, in California, parents may have the option to take protected disability leave or receive other accommodations for postpartum depression. Here’s what you need to know about when pregnancy-related depression becomes a disability, when it qualifies for leave, and how to seek accommodations for your condition.

Are Pregnancy-Related Health Issues Considered Disabilities?

For decades, health conditions related to pregnancy fell into a gray area in US law. Until the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), there was significant debate about whether pregnancy-related conditions could qualify as “impairments” under the original ADA. Many courts held that they did not, as a pregnant person is not normally perceived to have a disability, and their abilities would no longer be limited after their child is born.

The ADAAA changed this by requiring the definition of a disability to be construed broadly. It also clarified that the cause or duration of a disability does not impact the disabled person’s rights. As such, employers were required to grant the same accommodations or medical leave to people with pregnancy-related conditions as non-pregnant workers with equivalent impairments.

However, even after the ADAAA was implemented, only conditions caused by pregnancy were considered impairments. This included mental and physical health issues ranging from preeclampsia to postpartum depression, but pregnancy itself was not considered a disability and was not subject to the ADAAA. It was not considered grounds for accommodations or protected leave nationwide until the Pregnant Workers Fairness Act (PWFA) was enacted in June 2023.

Pregnancy Protections vs. Disability Protections

But does it matter whether being pregnant is considered a disability? It’s because there are a variety of protections available in California for both pregnant and disabled workers that may not overlap. Understanding these protections and when they are available can help new parents make the most of their rights. The most important state protections for expecting parents include:

California Family Rights Act (CFRA) Leave: Under the CFRA, all employers with five or more employees must provide their workers up to 12 weeks of unpaid leave in a rolling 12-month period to recover from serious health conditions or bond with a new child. However, expecting parents may hesitate to take this leave for disabling conditions during their pregnancy if they expect to need time to recover from postpartum depression after labor.
Pregnancy Disability Leave (PDL): California also requires companies with five or more workers to provide employees with up to four months of protected pregnancy disability leave if a person is disabled by a pregnancy, childbirth, or related medical condition. This only applies when a condition is disabling and runs simultaneously with CFRA leave.
Reasonable Accommodations: California required employers to provide reasonable accommodations for pregnant people long before the federal PWFA was enacted. These accommodations can include additional time off from work for health concerns if necessary and reasonable.
State Disability Insurance (SDI) and Paid Family Leave (PFL): If someone needs to take leave for their own disabling health condition, they may be eligible for SDI wage replacement. They may also qualify for PFL if they take CFRA leave to bond with a new child.

Mothers experiencing depression related to their pregnancy may be able to maximize their protected time off by using PDL and CFRA leave concurrently while they are disabled. Once they are no longer impaired, if they have CFRA leave remaining, they can use it as bonding time with their child.

When Does Postpartum Depression Constitute a Disability?

There is no strict definition of when the baby blues become disabling postpartum depression. However, the California Civil Rights Department (CRD) explicitly names conditions such as severe morning sickness, gestational diabetes, and postpartum depression as conditions that may be grounds for PDL.

Additionally, the CRD states that a condition caused by a pregnancy is determined to be disabling by the person’s healthcare provider. As a general rule of thumb, healthcare providers typically determine that someone is disabled according to their employers’ purposes if a mental or physical health concern prevents them from accomplishing core job responsibilities. For example, depression may be incapacitating if you cannot focus or struggle to get out of bed.

Your provider will give you a note for your employer explaining what accommodations or leave you need to recover. Your employer must provide you with the accommodations or PDL your provider recommends unless it places an “undue hardship” on the business. Furthermore, your employer cannot ask about the details of your condition, nor can your provider share those details without your permission.

What to Do If You’re Denied Accommodations for Postpartum Depression

While significant postpartum depression is almost certainly disabling, some employers may still attempt to deny your request for accommodations or PDL. If your manager refuses to grant you leave or you experience retaliation because of your request, it’s time to get professional help.Le Clerc & Le Clerc LLP is there for you. We have decades of experience representing pregnant employees whose rights have been violated. We are prepared to advocate for your right to PDL and reasonable accommodations in the workplace. Get in touch to learn more about how we can help you.

Your Right to Lactation Breaks in California

On Behalf of Le Clerc Le Clerc LLP
September 6, 2023
Pregnancy Discrimination

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.

Discrimination Against Moms: When Is it Illegal?

On Behalf of Le Clerc Le Clerc LLP
August 14, 2023
Pregnancy Discrimination, Pregnancy Issues

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:

Gender

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.

Pregnancy

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.

Class Action Lawsuit Against Amazon for Pregnancy Leave Violations to Proceed

On Behalf of Le Clerc Le Clerc LLP
July 31, 2023
Pregnancy Discrimination, Uncategorized

Amazon has been under fire for its working conditions for several years. Now, the Central District Court of California has permitted a pregnancy leave and discrimination class action lawsuit to proceed against the online retail giant, despite its attempt to have the case dismissed.

This is excellent news for anyone who has experienced pregnancy discrimination or protected leave violations while working for Amazon. It demonstrates that California courts remain dedicated to protecting workers’ rights, particularly those of pregnant people. Here’s what you need to know about this case and how you can hold your employer accountable for similar pregnancy discrimination with the help of a skilled attorney.

Background of the Amazon Pregnancy Discrimination Lawsuit

The putative class action lawsuit was filed on behalf of four plaintiffs, including one Ms. Sattar. These workers were employed at Amazon facilities in central California before 2022 and became pregnant while working for the company. The plaintiffs allege that while working for Amazon, they suffered pregnancy discrimination that impacted their hours, employment, and benefits.

Alleged violations by Amazon include:

Failing to inform workers of their rights to pregnancy leave under California law
Refusal to alter shift lengths upon employee request, even with doctors’ notes
Refusal to grant or extend protected leave as required by state law
Threats of retaliation for requesting or taking leave
Demotions, cut hours, and firings related to their pregnancies

The plaintiffs believe they are far from the only employees at Amazon warehouses to experience these issues. As such, they have filed their class action lawsuit to hopefully achieve justice for themselves and others who suffered similar discrimination and retaliation for becoming pregnant.

Amazon attempted to get the case dismissed on technical grounds. However, the Central Circuit Court denied the motion and is permitting the plaintiffs’ claim to continue.

Key Points of Employment Law Relevant to Pregnancy Leave

The class action lawsuit hinges on California’s unique pregnancy leave laws. The California Family Rights Act (CFRA), the Fair Employment and Housing Act (FEHA), and the Pregnancy Disability Leave Law (PDLL) all provide protections for workers who are or may become pregnant. Among these protections include key rights such as:

The right of eligible workers to take up to 12 weeks of protected unpaid leave to recover from labor or welcome a child under the CFRA.
The right to up to four months additional protected disability leave for disabling conditions related to pregnancy under the PDLL, including emergency leave for acute conditions.
The ability to request and receive reasonable accommodations for pregnancy-related conditions under the PDLL.
The freedom from discrimination for pregnancy and related conditions under FEHA.

Crucially, employers cannot retaliate against workers for requesting protected leave. Retaliation includes demoting someone, cutting their shifts, firing them, or otherwise penalizing them for asking for disability or family leave. Furthermore, failing to approve leave or provide reasonable accommodations like reducing a pregnant person’s hours are considered violations and grounds for legal action.

Analysis of Amazon’s Alleged Violations

Ms. Sattar’s experiences demonstrate exactly how many ways Amazon may be violating pregnant workers’ rights at its California warehouses. According to Ms. Sattar’s allegations, her ordeal began when Amazon failed to inform her of her right to any form of parental or pregnancy disability leave (PDL), violating FEHA’s notice requirements.

Ms. Sattar learned about her rights elsewhere. Upon determining that her pregnancy may put her at risk, she submitted a doctor’s note requesting three months of PDL several months in advance, following the PDLL. However, her request was allegedly denied, which appears to be in violation of FEHA and the PDLL.

Later, when Ms. Sattar began experiencing pain related to her pregnancy, her doctor asked Amazon to provide her with the reasonable accommodation of shortening her 10.5-hour shift by at least one hour. This request was also denied.

When Ms. Sattar attempted to stand up for her rights, her manager threatened her employment directly related to her request for leave. Just days later, she was demoted to part-time, causing her to lose her health coverage. This appears to be an upsetting but unfortunately common example of pregnancy discrimination.

Ms. Sattar’s issues are not unique. Her fellow plaintiffs have remarkably similar stories. This mistreatment by Amazon not only violates employees’ rights to fair employment, but also puts its employees’ health at risk.

Possible Implications and Outcomes of the Amazon Case

While the lawsuit has a long way to go, it seriously affects workers. If Amazon is found to have violated California employment rights laws, it could be ordered to pay damages to workers for their lost pay and benefits. Damages in pregnancy discrimination and protected leave cases often reach hundreds of thousands of dollars per plaintiff.

Additionally, this case highlights how important it is for workers to stand up for themselves. If Ms. Sattar and her colleagues had not banded together, it could have been years before Amazon was called to account for its abusive practices. Now, workers may receive justice by pursuing their own claims even if the class action does not succeed.

Standing Up Against Pregnancy Discrimination in California

Despite Amazon’s best efforts, Ms. Sattar’s class action lawsuit will continue. The plaintiffs can now pursue their case and demonstrate how the retail company’s discriminatory behavior has harmed them. If you have experienced pregnancy discrimination or retaliation for requesting protected leave, you can do the same.The first step is to talk to an experienced California pregnancy lawyer at Le Clerc & Le Clerc LLP. Our experienced attorneys are dedicated to defending workers’ rights to fair employment and freedom from discrimination in San Francisco and throughout California. Get in touch to discuss the issues you face and learn more about how we can help you hold your employer accountable for violating your rights.

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

On Behalf of Le Clerc Le Clerc LLP
June 12, 2023
Pregnancy Discrimination

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.

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