SAN FRANCISCO EMPLOYMENT LAW BLOG

Becoming pregnant is a life-changing experience. For many workers, it’s also a career-ending change. Despite multiple laws on the books intended to protect pregnant people from discrimination and allow them to continue working, pregnant people around the country struggle to receive the job accommodations they need.

That’s why the Pregnant Workers Fairness Act (PWFA) is being considered by Congress. It’s already been passed by the House with strong bipartisan support, and the Senate Health, Education, Labor, and Pensions Committee has approved it. Should the bill be signed into law, it could grant workers significantly more rights to pursue accommodations during pregnancy around the country. Here’s how the bill works, how it compares to extant state laws, and what it may mean for California workers like you. 

What You Need to Know About the Pregnant Workers Fairness Act

The PWFA would update the federal Pregnancy Discrimination Act of 1978 (PDA). The PDA made it illegal for employers to discriminate against workers because of pregnancies, childbirth, or related health conditions. It specifies that pregnant people have the right to receive equal treatment “not so affected but similar in their ability or inability to work.” 

The problem is that this leaves some holes when the law is interpreted narrowly. If an employer would not provide accommodation for a non-disabled person to perform a job because they need it, the PDA allows them to refuse pregnant people similarly. This is because an “ordinary” pregnancy, or a normal pregnancy without significant medical complications, is not considered a disability under the Americans with Disabilities Act (ADA). 

Therefore, under the PDA, companies may not discriminate against workers for undergoing labor or significant medical complications of their pregnancy. However, if those conditions impede their ability to work but do not fall under the ADA, companies can refuse accommodations just as they could a non-disabled person. As it stands, workers need to demonstrate that they are actively being discriminated against because of their gender or that their pregnancy meets ADA standards to receive accommodations for pregnancies. This forces many people out of the workforce with little justification. 

The PWFA would close this loophole. It would require companies to provide workers with the accommodations they need to continue working regardless of whether their pregnancy meets ADA standards. This would allow workers in many states to continue working by requiring companies to provide simple aids such as stools for retail workers or schedule changes to avoid morning sickness. 

How Does the PWFA Compare to State Laws?

Thirty states already have laws similar to the PWFA. These states require companies to provide accommodations to pregnant workers, but they differ in each state. Furthermore, twenty states do not have any law requiring these accommodations, forcing people to choose between a healthy pregnancy and keeping their jobs. 

California’s Fair Employment and Housing Act (FEHA) covers some of the same considerations as the PWFA. Under FEHA, a person is considered “disabled by pregnancy” if something they experience because of their pregnancy prevents them from performing essential duties or puts themselves or their unborn child at undue risk. Under FEHA, pregnant people are considered disabled and must be granted the same accommodations as disabled persons with similar restrictions. 

This means that in California, workers can already pursue reasonable accommodations at their jobs if they demonstrate that they would otherwise be at risk or unable to perform their duties. However, they may need to provide a doctor’s note explaining why they cannot perform their current responsibilities. Should the PWFA pass, it may remove this requirement, allowing workers to request reasonable accommodations and work with their employers to find solutions without needing to attend an additional appointment. 

Pursuing Fair Treatment as a Pregnant Worker in California

Until the PWFA passes, California workers must rely on the state’s existing pregnancy protections. These laws are generally strong, though the requirement for a doctor’s note may still be an imposition on some employees. If you’re a pregnant worker in California, you have the right to leave and accommodations throughout your pregnancy, childbirth, and after your child is born. If you aren’t granted these, you may be suffering from discrimination. 

Examples of discrimination against pregnant workers under FEHA include:

• Refusing to allow schedule or shift changes to help the worker continue to do their best work
• Failing to provide seating for pregnant workers when possible
• Requiring pregnant workers to continue doing significant physical labor instead of granting light duty
• Ordering workers to take paid or unpaid time off instead of providing accommodations for their pregnancy

Your rights may have been violated if any of these issues sound familiar. You can start the process of fighting back by taking the following steps:

• Document your request and condition: You need to inform your employer that you would like an accommodation before they must grant it. Keep records of any messages you’ve sent to Human Resources or your supervisor regarding your request to show you’ve made an effort.
• Save communications: Keep copies of anything your employer sends you regarding your requested accommodations and employment status. This can help you prove your request was unfairly denied or that you were discriminated against because of your pregnancy. 

Most importantly, you should reach out to an experienced employment law attorney if you’ve suffered pregnancy discrimination in the workplace. 

Legal Assistance for People Facing Pregnancy-Based Discrimination in the Workplace

As an expectant parent, you have enough to worry about. Don’t let workplace discrimination become another problem. If your employer is refusing to grant you accommodations for your pregnancy or has fired, demoted, or cut your hours because of your pregnancy, you need legal help.At Le Clerc & Le Clerc LLP, we’re ready to help. We have years of experience advocating for clients who have suffered pregnancy discrimination in the workplace, and we understand how to help you resolve your claim. Schedule your consultation today to learn how we can help you take a stand against discriminatory practices and remain in the workforce today.

The Equal Employment Opportunity Commission (EEOC) has released a new poster that must be displayed prominently by all covered employers. The new poster, titled “Know Your Rights: Workplace Discrimination is Illegal,” replaces the previous “EEO is the Law” version and provides updated guidelines for employees to understand their rights in the workplace. 

The updated poster demonstrates a shift in the EEOC’s attitude toward workers’ right to be informed. Learn why EEOC posters matter, how the new guidelines may affect you, and how to take action if your rights are violated at work. 

Why EEOC Posters Matter

The EEOC is responsible for ensuring that employers and employees alike understand their rights and responsibilities in the workplace. One way the EEOC has accomplished this is by mandating that covered employers clearly post government-approved notices regarding workers’ rights on work sites. The EEOC develops posters that cover these rights to ensure that all relevant employers display the same information and do not leave out critical details. 

Covered employers generally include organizations with 15 or more employees. These companies must ensure the posters are displayed in a prominent location that is easily accessible to people with disabilities at each work site. They are also encouraged to post them on their online workers’ portal. This is intended to ensure that every worker has the opportunity to read and understand their rights, particularly in large organizations that may have more resources to oppose disputes with employees. 

The Impact of the New EEOC Guidelines

The updated “Know Your Rights” poster significantly improved from the previous version. The current version includes the same information as the “EEO is the Law” poster but changes the format and adds additional resources for workers. Information carried over from the previous poster includes an explanation of workplace discrimination law regarding:

• Race
• Sex
• Age
• Disability
• Genetic information
• Equal pay
• Retaliation for filing charges or otherwise opposing discrimination

This information is rewritten and restructured in the “Know Your Rights” poster. While the “EEO is the Law” poster covered all of these subjects, it did so in dense text without an easy-to-follow structure. The new version has been written with straightforward language and formatted to include bullet points, making it easier to read at a glance. 

In addition, the new poster clarifies that:

• Discriminatory actions because of pregnancy, sexual orientation, and gender identity is a form of sex discrimination
• Harassment is also considered discrimination
• Contractors are also due equal pay, though under different guidelines than traditional employees

Finally, the poster adds a QR code that allows workers to access a webpage explaining how to file a discrimination charge against their employer. It is available in English and Spanish, with new translations available in the future. 

Employers must acquire the “Know Your Rights” poster and use it to replace the previous version as soon as possible. If the new poster is not hung in a reasonable timeframe, covered employers may be subject to fines based on how long they have delayed. 

Determining If Your Rights Are Being Violated

The EEOC poster is a valuable resource for anyone concerned about workplace discrimination. The poster should be easy to find and read if you work for a covered employer. If not, your employer may be violating your rights. To determine if your employer is failing to meet EEOC standards, ask yourself the following questions:

• Is your employer covered? If the company has 15 or more workers, the answer is almost certainly yes. Smaller organizations may also be covered if they meet specific standards, such as being a public or government institution.
• Is there a poster anywhere on the property? Covered employers must physically post the notice on the property. It may not only be provided by email or through a website. 
• Is the poster easy to access? The notice must be posted prominently, typically in a break room, next to a timecard machine, or in other locations where employees spend their time. This means it can’t be in an area inaccessible to certain workers, such as an executive lounge.
• Is the poster accessible to people with disabilities? The notice must be accessible to disabled people, so it cannot be posted somewhere a person in a wheelchair or with other restrictions would be unable to see.

If your employer has not met these criteria, they violate EEOC regulations. 

What to Do If You Are Suffering Discrimination

EEOC regulations are among the most basic requirements covered employers must meet. If your workplace has not posted the new freely available EEOC notice, it may be a sign that your rights are being violated in other ways. You should consider whether you suffer from discrimination, such as unequal pay, harassment, lack of disability accommodations, or other problems. 

If so, you can take action:

• Document the discrimination: Collect evidence that you suffer from unfair workplace treatment because you are part of a protected class. This can include writing down instances of harassment or saving communications that show you are being treated poorly. 
• Consider notifying your workplace: If the discrimination is primarily performed by one person, you may be able to notify Human Resources and request that they take action against the person abusing you. 
• Talk to an experienced employment law attorney: If you feel uncomfortable discussing the matter within your company, or if your employer does not respond to your complaints, you should consult with a qualified lawyer and discuss filing an EEOC complaint or a civil lawsuit.

Legal Assistance for Workplace Discrimination

The new EEOC poster clearly demonstrates that the EEOC is putting workers’ needs first. By making the information easier to read and clarifying essential details, the Commission has taken an important step to ensure all employees actually understand their rights. At Le Clerc & Le Clerc LLP, we have years of experience advocating for workers in California. We understand how to protect your rights in the workplace, whether through negotiation or litigation. Schedule your consultation today to learn how we can assist you.

As a country, the US has made huge strides in civil rights protections over the past several decades. However, there is still a long way to go. California has long been a leader among the states in expanding legal protections and enshrining new civil rights into law. This is just as true for LGBTQ protections today as it was for gender equality forty years ago. 

One way California has set a positive example for the nation is by providing clear and specific protections for LGBTQ people in the workplace. If you are a member of the queer community, you’re protected under state law from discriminatory employment action. Keep reading to learn how California protects you, examples of illegal discrimination you may have suffered, and what you can do if you’ve been discriminated against for your sexuality or gender presentation.

The Difference Between Federal and California Discrimination Laws

Federal laws on civil rights are often slow to change. In many cases, the exact interpretation of critical laws like the Civil Rights Act of 1964 is left to the courts to decide instead of having Congress pass new laws. In contrast, California legislators have a longstanding tendency to enshrine rights into laws rather than waiting for lawsuits to reach the state Supreme Court and set precedents. 

This means that despite attitudes toward LGBTQ people changing nationwide, there remains a significant gulf between the federal government’s and California’s protections. Under the original Civil Rights Act, protected classes include: 

• Race
• Color
• National origin
• Religion
• Sex

This has been expanded to cover other groups, including:

• Disability (under the Americans with Disabilities Act of 1990)
• Pregnancy (under the Pregnancy Discrimination Act of 1978)
• Age over 40 (under the Age Discrimination in Employment Act of 1967)

In the text of these federal laws, there is no mention of LGBTQ matters. Supreme Court rulings have determined that taking adverse employment actions against LGBTQ people violates the Civil Rights Act’s protections based on sex. However, the Court has recently demonstrated that it is willing to reverse its past decisions when it repealed Roe v. Wade, so this is no longer the protection it used to be. Finally, these laws only apply to employers with fifteen or more workers. 

In contrast, California specifically names LGBTQ groups in its Fair Employment and Housing Act. It designates all the classes above but adds:

• Sexual orientation
• Gender
• Gender identity
• Gender expression

In addition, these protections apply to all employers with five or more employees. As a result, protections for these groups in California are significantly more robust, making it easier for queer people to find employment and keep it. 

Examples of Illegal LGBTQ Employment Discrimination in California

Despite these strong protections, many California residents don’t realize the extent of their legal rights. If you are a member of the LGBTQ community, you may have experienced illegal discrimination without realizing it. Common examples of discrimination that are illegal in California include:

• Asking about gender or sexual orientation in interviews: Interviewers cannot ask you about your orientation or gender in interviews. If they include it on an application, you do not have to answer, and they may not make hiring decisions based on your response or lack thereof.
• Asking about marital status in interviews: Marital status is also protected, regardless of the gender of your spouse. Asking about whether you’re married can be another way to identify your sexual orientation and is not permitted.
• Requiring gendered dress codes: If employers require dress codes, they cannot be based on gender identity or expression. They may provide different types of permissible clothing or uniforms but may not restrict some people from wearing items like skirts or pants.
• Purposeful deadnaming or misgendering: If you have transitioned, purposefully using your deadname or the incorrect pronouns may be considered discriminatory harassment.
• Excluding gender-affirming care in insurance: If a California employer provides insurance for their employees, that insurance must cover gender-affirming care such as hormone replacement therapy and gender reassignment surgery.
• Firing, cutting hours, or refusing to promote based on gender expression: Employers can’t take adverse actions against workers for failing to conform to traditional gender expression. 

The Impact of California’s Strong Discrimination Laws

California’s LGBTQ workplace discrimination laws have an outsized impact on some of the most vulnerable workers in the state. By providing these protections, the state gives LGBTQ workers the resources to stand up to employers who mistreat them. If any of the situations above sound familiar, you may have grounds to file a discrimination lawsuit against your employer to pursue compensation for the losses you’ve suffered. 

If you suspect you’ve been discriminated against because of your gender identity, presentation, or sexual orientation, you can get help. Here’s what you can do to fight for your rights to fair employment:

• Document your treatment: Save communication with your employer that demonstrates how you have been discriminated against, and write down or record instances of harassment.
• File a complaint: If you feel safe enough to do so, file a complaint with your manager or the company’s Human Resources department to demonstrate that you’re acting in good faith.
• Get legal help: If your complaint does not resolve the harassment or discrimination you face, consult an experienced employment law attorney to decide your next steps.

Expert Legal Counsel for Victims of LGBTQ Workplace Discrimination

California has put many protections in place for LGBTQ people, but they don’t prevent discrimination in the workplace. Instead, they offer workers the chance to fight back when they are discriminated against. If you have lost opportunities or experienced a hostile workplace because of your gender or orientation, you deserve expert legal assistance from the team at Le Clerc & Le Clerc LLP. 

Our knowledgeable attorneys have years of experience fighting for LGBTQ protections in California. We are available to assist you with pursuing fair employment regardless of why you are being harassed. Schedule your consultation today to learn more about how we can help you. 

A new year is an excellent time for new beginnings, according to California legislators. The state government instituted multiple laws over the past year to protect workers from predatory companies or provide them with more rights. Most of these laws are scheduled to go into effect on January 1^st, 2023. 

That means that California workers should expect significant changes in their workplace rights in the new year. However, employers are often slow to respond when employment laws change. You need to know what laws are changing in 2023, so you can hold your employer accountable if adjustments are not made. Below are some of the most essential new employee protection laws for 2023 and what they mean for you.

Improvements to the California Family Rights Act (CFRA)

CFRA is California’s answer to the federal Family and Medical Leave Act (FMLA). Under CFRA, California workers have the right to take up to twelve weeks of unpaid time off of work every twelve months to care for designated family members. However, the extant law restricts this to immediate family members such as spouses, grandparents, children, and siblings. 

Next year, that changes. Assembly Bill (A.B.) 1041 updates CFRA and the Healthy Workplaces Healthy Families Act (HWHFA) to expand who workers may take time off work to care for. Instead of limiting worker leave to immediate family members, A.B. 1041 allows workers to designate a specific person for each leave request. This can be anyone, without the need for a particular relationship. As a result, workers can now care for all their loved ones, including fiancés, aunts and uncles, or dear friends, without risking unemployment.

Increase in Privacy Rights

Multiple laws updating employee privacy rights will go into effect on New Year’s Day. For instance, A.B. 984 requires employers to disclose the use of GPS tracking technology on company vehicles. In addition, it gives employees the right to turn off these devices when using company vehicles while not on the clock. Previously, companies could add tracking technology to fleet cars and trucks without letting workers know, allowing them to monitor exact locations and speed whether they were on or off the clock. 

Meanwhile, the California Privacy Rights Act of 2020 will also go into effect. It significantly increases the care employers must take to protect and secure private worker information. Workers will have the right to know what information has been collected, how it is being used, and even request that it be deleted entirely.

Extension of COVID-19 Workers’ Comp Benefits

California instituted a rebuttable presumption that workers who come down with COVID-19 caught it on the job, allowing them to pursue workers’ compensation for their illness. This was initially supposed to expire at the end of 2022. However, A.B. 1751 will extend this presumption until January 1^st, 2024. As a result, workers who catch COVID-19 will have the opportunity to receive workers’ compensation benefits to help cover their lost income while they are recovering from the illness.

Broadening of Health Benefits

California has some of the country’s most inclusive laws regarding employer health insurance coverage. These laws will expand further in 2023. First, A.B. 2134 will require religious employers and insurers who do not provide coverage for contraception and abortion to provide clear and understandable materials to workers explaining how to access these services for free through the California Reproductive Health Equity Program.

In addition, Senate Bill (S.B.) 523 will amend the Fair Employment and Housing Act (FEHA) to bar employers from discriminating against workers for reproductive decisions such as taking contraception or receiving an abortion. It will also expand the required health plan coverage of contraceptives. Combined, S.B. 523 and A.B. 2134 will significantly improve reproductive healthcare benefits and protections for all workers in the state.

Expansion of Hate Crime Definitions

All workers deserve the right to workplaces that are safe and not hostile. Unfortunately, it can sometimes be difficult for employees to prove that they are suffering harassment or discrimination in the workplace. That is one of the reasons that A.B. 2282 was passed to expand the definition of hate crimes in places of employment. 

Under the law, workplace hate crimes will include not only verbal threats and physical harassment but also the display of hate imagery. Examples of hateful imagery specifically named in the bill include:

• Nooses
• Burning crosses or other religious symbols
• Nazi swastikas

The bill also states that hateful imagery includes more than these symbols.

By expanding the definition of hate crimes, California is giving workers stronger grounds to file harassment and discrimination claims against employers who do not take action to halt the display of this disturbing imagery. 

Additions to Non-Retaliation Laws

No one should have to choose between keeping their job and driving to or from work during emergency conditions. Under S.B. 1044, most employers will no longer be allowed to retaliate against employees who refuse to come to or leave work during emergency conditions. Employers also will not be permitted to prevent employees from accessing their mobile devices during emergencies. 

The law defines these as “conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act” or “an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.” By providing these protections, S.B. 1044 allows workers to retain their jobs without risking their physical safety.

Get Expert Legal Help Standing Up for Your Rights

The laws listed above are just some of the updates to California employment laws coming in 2023. If your employer doesn’t take steps to comply with these new regulations, they will be violating your rights. At Le Clerc & Le Clerc LLP, we are dedicated to protecting your employee rights no matter how state law may change. Schedule your consultation to learn how we can advocate for you under new employee protection laws for 2023.