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SAN FRANCISCO EMPLOYMENT LAW BLOG

For decades, business owners in California and elsewhere have known that sex sells. For that reason, many entertainment executives, such as bar and club owners, often require members of their staff to wear skin-tight uniforms. Even under ideal circumstances, these skimpy uniforms can be uncomfortable to wear.

Putting on a tight uniform is not likely to harm your unborn baby. According to the Cleveland Clinic, though, wearing tight clothing during your pregnancy can exacerbate your heartburn, make normal swelling more painful and even increase your chances of developing certain infections.

You should not have to worry about losing your job

You certainly have some well-founded reasons for wanting to wear something more comfortable to work during your pregnancy. Your manager may not have much sympathy, however. Still, you should not have to worry about losing your job because you cannot don your normal work attire.

Remember, simply because your body is going through some extreme changes does not mean you cannot perform your job duties. If your employer wants to terminate your employment because of a pregnancy-related reason, you may be a victim of pregnancy discrimination.

California has broad protections for pregnant workers

As you probably know, entertainment industry managers sometimes push the limits of the law as far as they can. Nevertheless, you do not have to stand idly by while your manager or anyone else discriminates against you. Because California affords broad protections to pregnant workers, you likely have some immediate options for recourse.

Ultimately, rather than wondering if your job is in jeopardy at a time when you most need it, you should explore all available opportunities for stopping your boss’s discriminatory actions.

As you continue to work while pregnant, you may notice people around you treating you differently.

In some cases, the negative impact this reaction has may not seem apparent at first. Learning more about the signs of pregnancy discrimination can help you if you are struggling at work.

Less regular inclusion

According to the U.S. Equal Employment Opportunity Commission, your bosses may try to exclude you from possible promotions after you become pregnant. They may not send you group emails that you got before or you may have a new schedule of reduced hours, which can leave you at a disadvantage.

You may need accommodations, such as getting different kinds of assignments than usual or not having to lift items of a certain weight. This does not mean your bosses should exclude you from the workplace or possible promotions.

Sudden change in promotion schedule

Your bosses may also fail to continue with the interview process for a promotion you were in the running for before telling them about your pregnancy. If your employer previously stated that you met all the qualifications and now says that you are not able to continue the process, then this may be due to your pregnancy.

Some employers may assume that pregnant women will leave the workplace, which can lead to a hesitancy to promote them.

Hesitancy to allow time off

While you may need to go to medical appointments and other pregnancy-related visits, your employer may try to discourage you from taking time off. This kind of restriction can make it feel like you have to choose between seeking medical care for your pregnancy and keeping your job.

Staying aware of these subtle signs can help you if you notice pregnancy discrimination occurring while at work.

When your California employer maintains a workforce of 15 or more people, that employer has a legal obligation to comply with the guidelines set by the Americans with Disabilities Act. This means that if you work for such an employer, you have certain protections available to you if you need special accommodations due to pregnancy or a pregnancy-related condition.

Per the U.S. Equal Employment Opportunity Commission, part of the ADA dictates that your employer must make “reasonable accommodations” for you if you require them due to your pregnancy or pregnancy-related condition. What does this mean, and what sorts of accommodations might fall under this umbrella?

Understanding reasonable accommodations

A reasonable accommodation is a change within your workplace that your employer makes to make it easier for you to perform your job. A reasonable accommodation may also be something your employer does to ensure that you receive equal benefits and privileges while pregnant, or while experiencing something related to pregnancy.

Understanding what constitutes reasonable accommodations

Your employer may have to grant you a reasonable accommodation if you need lighter duties due to your pregnancy. For example, if heavy lifting is a part of your job, your employer may need to modify your duties until heavy lifting no longer poses a threat to you or your baby. Your employer may also have to give you more frequent breaks or change your hours or schedule if you ask him or her to do so.

Often, employment disputes arise over what types of requested accommodations are, in fact, “reasonable.” Typically, the burden of proving that an accommodation is not reasonable falls on the employer.

If you are pregnant and work in a highly competitive industry you may worry that your position will go to another employee while you take time off to care for your newborn.

Here is what you should know about employers’ obligations to women who take family leave after giving birth.

Do employers have to give employees coming back from family leave the same position?

Though many employers are legally obligated to give employees returning from maternity leave the same or a similar job, there are some exceptions. For example, if there is a legitimate business reason for letting an employee go, such as mass layoffs or corporate restructuring, your company may not have to grant you the position you previously held.

What do you do if you believe you experienced discrimination as a result of your pregnancy?

If you believe your employer discriminated against you because of pregnancy your first course of action to resolve the issue should include attempting to resolve the matter internally.  This could involve discussions with your manager or the human resources department if the company has one.

You have up to one year to file a complaint with California’s Department of Fair Employment and Housing. In instances when DFEH is unable to resolve the issue, the organization issues a right to sue letter and sends it to the employee giving them one year from that date to sue the employer.

Whether you can take legal action against your employer for pregnancy discrimination is not a black and white issue. Numerous factors come into play, but ensure you take action swiftly to avoid missing the deadlines.

There are no rules that govern the right time to tell your boss that you are pregnant. Obviously, you have to tell him or her eventually, but the timing is up to you.

Some women want to wait until they are through the first trimester before sharing the news, while others want to get it out in the open right away. If you are thinking about notifying your employer earlier, you should know the pros and cons.

Pros

According to CNN, informing your boss of your pregnancy early on allows you to start having the conversation about plans for your maternity leave and whatever other accommodations may be necessary. Having the plans in place well before the time comes can help give both you and your boss peace of mind.

Sharing news of your pregnancy early on can help build trust with your boss and your co-workers. While the timing of the disclosure is your decision, some may feel hurt that you did not come to them with the news sooner, as though you were hiding something. On the other hand, if you notify your boss and co-workers before you “have to,” they may appreciate your transparency.

Cons

If the worst should happen and you have a miscarriage, it can be a painful experience both physically and emotionally. If you do not feel that you can have that discussion with your boss, you may want to wait until after the first trimester to inform your boss of your pregnancy.

On the other hand, if your boss knows about your pregnancy, he or she may be more sympathetic if you tell him or her about your miscarriage in the event of that worst-case scenario. Ultimately, when you notify your boss depends on what you feel comfortable with.

Workplace discrimination can happen to any protected party without warning, even as modern workplaces strive toward its elimination. This includes discrimination toward pregnant employees.

But exactly how does pregnancy discrimination work? And why does it happen in the first place?

Why do pregnant workers face discrimination?

The U.S. Equal Employment Opportunity Commission discusses pregnancy discrimination as its own specific form of discriminatory behavior. Pregnancy discrimination often occurs due to employers holding an irrational fear that their pregnant workers will quit immediately after giving birth, or that their work quality will significantly degrade after the birth of their child.

It is illegal in many places to fire a person simply for working while pregnant, though. Because of that, many discriminatory tactics involve creating an environment so inhospitable that the pregnant worker makes the decision to quit, even if they essentially get forced into it.

Getting iced out

These “ice-out” techniques will often involve the exclusion of the pregnant person from social events. It may start small at first, like not inviting the pregnant worker to a party due to the supposed abundance of alcohol that may be present.

However, it often escalates quickly and also grows to include actual work events, too. Many pregnant employees who experienced discrimination at their workplace state that they eventually stopped getting notifications for work meetings and got left out of important planning sessions, too.

Talk of raises or promotions that were ongoing before the pregnancy may also come to a halt. Employers may even try to demote pregnant workers, furthering the potential necessity to leave the job.

It is possible to take action for compensation after experiencing any of this. Seek out legal aid to learn more.

Many people believe bonding with a baby happens automatically. Realistically, it can take time to bond. Do not worry about rushing back to work too soon. According to the U.S. Equal Employment Opportunity Commission, new parents may be eligible for 12 weeks of leave for the child’s care. You can work on the bond between you and your baby during this time.

When it comes to baby bonding, there are several ways to increase your connection.

Sleep in the same room with your baby

Try to share as much time with the baby as possible. In the hospital, ask for your baby to sleep in the same room. If you have a premature baby, your child may be in the NICU for some time. Ask the hospital staff for extra time to touch and hold them. Not only can this increase healing, but it can help the bond increase between you and the child. Just talking with babies can help with the bond.

Keep contact with your child

Your touch and voice is reassuring to your new baby. Spend as much time as you can with your baby, holding him or her and speaking softly. Gentle rocking and singing can comfort children. In addition, massage can also improve the relationship between parents and infants. For premature infants, it relieves stress and may be able to ease postpartum depression in mothers.

Kangaroo care, or skin-to-skin contact can also help with newborns. The baby should have as much skin on skin contact as possible. This can help calm babies and can also improve breastfeeding.

Even if you have difficulty bonding after childbirth, you can increase your relationship with your child.

Pregnancy should be a joyous time in your life in which you are able to work but also prepare for the birth of your child. While some pregnancies are straightforward, others can come with complications early on. This can mean that some people who are pregnant need to take time off work throughout their pregnancy.

If you are dealing with severe morning sickness or ongoing medical issues due to your pregnancy, you may worry about whether this extended time off work will have a negative impact on your work. For example, you may be concerned that your employer will deem you to be unreliable or that they will terminate your employment. It is important that you are aware of your rights as a pregnant employee and that you take action to assert your rights when appropriate. The following is an overview of why pregnancy complications should never affect your career.

Discrimination cannot occur based on pregnancy

The Pregnancy Discrimination Act (PDA) makes it unlawful for an employer to discriminate based on pregnancy regarding any aspect of employment. This means that pregnancy cannot be taken into consideration when an employer makes hiring, firing or salary decisions. In the same way, an employer cannot make job assignment decisions based on a person’s pregnancy. Therefore, if you feel that you are not progressing in your career in the way that you deserve because of your pregnancy, you may be able to take legal action against your employer.

Pregnancy complications count as temporary disability

If you are suffering from a medical condition due to your pregnancy such as preeclampsia, gestational diabetes or severe morning sickness, you are classed as having a temporary disability under the law. This means that your employer may need to provide reasonable accommodations for you, and your job will be protected.

Make sure that you take action to protect your career if you believe that you are being discriminated against due to your pregnancy.

I read this article about pregnancy discrimination (I Was Fired for Being Pregnant – Yes, Really) the other day on the internet and I thought it was unfortunate that the author did not consult with us.  Many times employers misclassify employees as independent contractors – hence all the anti-discirmination laws that apply to employees may have applied to her.  Yet even if she was properly classified as an independent contractor, there are many other laws that apply to discrimination in the formation and performance of contractual relationships that may have let her recover for the loss of her work.  We have successfully represented many employees/independent contractors in pregnancy discrimination cases, and her case has the makings of particularly potent case.

Additionally, it is worth watching the “related video” that appears after the article regarding the woman terminated by text message.  Many cases of pregnancy discrimination involve such outrageous conduct as a manager texting a pregnant woman to inform her that she is terminated.  In fact, bad actors often send text messages to say things that they would not otherwise write and can be particularly valuable evidence of discrimination.

If something like this happens to you, you should give us a call to discuss.

How do you know if you’ve been discriminated against at work?

Sometimes it is obvious, because your employer overtly tells you something. For example, your employer might tell you that it won’t let you work because you are pregnant.

Sometimes, it is less obvious. For example, your employer starts micro-managing you after you revealed that you are pregnant. Or, for example, after disclosing your pregnancy, your managers begin providing you with negative feedback when before it was only positive. Another example might include writing you up for being late, when your co-workers arrive at the same time and they are not written up.

The New York Times did a very interesting piece on how pregnancy discrimination can manifest, and if you are not sure whether your employer is discriminating against you, we recommend reading the article.

If you believe that you may be the victim of discrimination and would like to discuss your situation with one of our attorneys, let us know. We are happy to discuss.

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