Working Parents’ Rights in California

At Le Clerc & Le Clerc, LLP, we understand the challenges working parents face when balancing professional responsibilities and family life. California law provides strong protections for working parents, particularly regarding gender discrimination and the right to parental leave. Our experienced employment law attorneys are here to help you understand and protect your rights.

Is Discriminating Against Working Parents Illegal?

In California, discrimination against parents in the workplace is not explicitly prohibited as a standalone category. However, legal protections for parents are effectively enforced through a combination of federal, state, and local laws addressing related forms of discrimination. These laws ensure that parents are not unfairly treated in the workplace based on factors commonly associated with parenting responsibilities, such as gender, pregnancy, lactation, or taking protected leave.

These overlapping legal frameworks collectively prevent discrimination against parents by addressing the root issues often linked to parenting, rather than explicitly outlawing “parental discrimination.” This approach means that an employee facing discrimination for being a parent must demonstrate that the unfair treatment was tied to a protected characteristic—such as their gender—or an activity covered by law, like taking parental leave. For example, if a father is denied a promotion because he requested paternity leave, this could be framed as gender discrimination under FEHA.

While these protections are strong, they require parents to connect their workplace challenges to a protected category or activity to successfully assert their rights. This legal framework highlights the importance of understanding and leveraging the existing laws to safeguard parental rights in the workplace. Let’s break down the specific federal, state, and local laws that may offer you protections as a working parent.

Gender Discrimination: Protections at the Federal, State, and Local Levels

Gender discrimination occurs when an employer treats an employee unfairly based on gender. For working parents, this type of discrimination often manifests as:

• Pregnancy Discrimination: Employers may unlawfully refuse to hire, promote, or accommodate employees based on pregnancy or childbirth-related conditions.
• Parental Leave Discrimination: Both mothers and fathers are entitled to take parental leave to bond with their new child, and discriminating against an employee for taking or requesting leave is illegal.
• Pay Disparities: Gender-based pay inequities, particularly after becoming a parent, are a common form of discrimination.

Below are the federal, state, and local laws that prohibit this form of discrimination in California:

Federal Protections Against Workplace Gender Discrimination

Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963 are cornerstone federal laws prohibiting discrimination based on gender. While neither law explicitly addresses parental discrimination, they intersect with it by providing protections against workplace practices that disproportionately affect parents, particularly in ways tied to gender-based stereotypes or expectations.

Title VII of the Civil Rights Act of 1964

Title VII prohibits employers from discriminating against employees on the basis of sex, as well as other protected characteristics such as race, religion, and national origin. Over time, the interpretation of “sex” under Title VII has been expanded to include gender-based stereotypes, pregnancy, childbirth, and related medical conditions. This expansion is particularly important for addressing parental discrimination.

For example, Title VII protects against discrimination stemming from stereotypes about traditional gender roles. If an employer assumes that mothers are less committed to their jobs because of caregiving responsibilities and penalizes them in hiring, promotions, or pay, that behavior can constitute unlawful sex discrimination under Title VII. Similarly, fathers can invoke Title VII protections if they face discrimination for taking parental leave or for seeking work accommodations typically associated with caregiving, as this may stem from stereotypes that caregiving is a “woman’s role.”

Equal Pay Act of 1963

The Equal Pay Act (EPA) mandates that men and women performing substantially equal work under similar conditions must receive equal pay. While the EPA does not specifically mention parental discrimination, it addresses one of the ways gender inequality affects parents in the workplace: the gender pay gap.

The “motherhood penalty” and “fatherhood bonus” are well-documented phenomena. Women often face reduced earnings after becoming parents due to biases about their commitment to work, while men may see their earnings increase because they are perceived as breadwinners. If a mother is paid less than her male counterpart for performing the same job, and that pay disparity is based on assumptions tied to her role as a parent, it violates the EPA.

Both Title VII and the EPA play critical roles in addressing parental discrimination because parenting often intersects with gender-based assumptions. Employers may not overtly discriminate against parents, but actions based on gendered stereotypes about caregiving or family responsibilities are unlawful under these laws.

For instance:

• Under Title VII: An employer denying a promotion to a mother because they assume she cannot handle additional responsibilities due to parenting obligations is engaging in sex discrimination. Likewise, if a father is denied paternity leave because caregiving is seen as a woman’s duty, it also constitutes gender discrimination.
• Under the EPA: If a mother returning from parental leave is paid less than male colleagues performing the same role, and the pay disparity is linked to her gender or assumptions about her commitment to work, this would violate the law.

These laws underscore that while “parental discrimination” is not an explicit legal category, it is effectively prohibited when it arises from or is tied to gender-based discrimination. Parents facing workplace discrimination must frame their claims within the protections these laws provide, focusing on how their treatment reflects bias against their gender, gender roles, or associated characteristics. By addressing these intersections, Title VII and the EPA protect parents from unfair treatment rooted in outdated gender norms.

Statewide Protections for Gender Discrimination in the Workplace

California state laws provide robust protections against gender discrimination, and these laws intersect with parental discrimination by addressing workplace biases that often disproportionately affect parents. The Fair Employment and Housing Act (FEHA), the Gender Nondiscrimination Act (AB 887), and the California Equal Pay Act collectively work to ensure that gender-based discrimination does not undermine the rights of workers, including those who are parents.

Fair Employment and Housing Act (FEHA)

The Fair Employment and Housing Act prohibits discrimination in employment based on sex, gender, pregnancy, childbirth, and related medical conditions, among other characteristics. Under FEHA, employers are also required to provide reasonable accommodations for pregnancy and related conditions, as well as ensure equal treatment regardless of gender identity or expression.

This law is critical in addressing parental discrimination, as it explicitly protects workers who experience differential treatment due to pregnancy or caregiving responsibilities. For example:

• A mother denied promotion because of assumptions about her ability to balance work and parenting can bring a claim under FEHA for sex-based discrimination.
• Fathers facing retaliation or bias for requesting parental leave under the California Family Rights Act (CFRA) could also have a valid FEHA claim, as such treatment is often tied to gender stereotypes.

By targeting systemic biases, FEHA ensures that parenting-related discrimination rooted in gender roles is unlawful.

Gender Nondiscrimination Act (AB 887)

The Gender Nondiscrimination Act expands California’s legal definition of sex to explicitly include gender identity and gender expression. This ensures that discrimination based on nonconformity to traditional gender roles or stereotypes is prohibited in all areas covered by FEHA.

This law’s relevance to parental discrimination lies in its protection against stereotypes tied to gender and caregiving. For instance:

• A workplace culture that penalizes women for being primary caregivers or fathers for taking on caregiving roles can be challenged under this law.
• Nonbinary or gender-nonconforming parents who face discrimination based on their parenting roles or gender expression are explicitly protected.

By broadening the definition of gender discrimination, this act prevents parental discrimination that is rooted in outdated societal norms about caregiving and family responsibilities.

California Equal Pay Act

The California Equal Pay Act mandates that employees performing substantially similar work must receive equal pay, regardless of gender, race, or ethnicity. Unlike the federal Equal Pay Act, California’s version has a broader scope, requiring equal pay for work of comparable, rather than identical, value.

This law addresses parental discrimination in cases where mothers or other primary caregivers are paid less due to biases about their perceived commitment to work. For example:

• A mother returning from maternity leave who receives lower pay or fewer opportunities than male colleagues for performing comparable work may have a valid claim under the California Equal Pay Act.
• Fathers who are penalized for taking parental leave or adjusting their schedules for caregiving, leading to unequal pay or loss of opportunities, could also be protected under this law if the pay disparity is linked to gender-based stereotypes.

Intersection With Parental Discrimination

These laws work together to combat the stereotypes and biases that often underlie workplace treatment of parents. FEHA and the Gender Nondiscrimination Act address direct discrimination and retaliation tied to gender or caregiving roles. Meanwhile, the California Equal Pay Act targets pay disparities that result from assumptions about a parent’s capabilities or availability based on their gender.

For example:

• A mother denied a promotion because of assumptions about her parenting responsibilities could claim sex-based discrimination under FEHA.
• A father who receives less pay after taking paternity leave could use the California Equal Pay Act to challenge unequal treatment.
• A nonbinary parent who is excluded from workplace opportunities due to their gender expression or caregiving choices would have protections under the Gender Nondiscrimination Act.

California’s comprehensive legal framework ensures that gender-based discrimination, including biases tied to parental status, is explicitly prohibited. While there isn’t a standalone law against parental discrimination, these laws intersect to provide strong protections for parents facing workplace inequities, addressing the root causes of such treatment and promoting fairness and equality.

Local Gender Discrimination Laws

In addition to the federal and state level protections against gender discrimination in the workplace, the following cities and counties in California have non-discrimination ordinances that may provide additional protections:

• Cathedral City, CA: City hotels and businesses may not discriminate based on gender identity or expression.
• Los Angeles, CA: City law states that “No person shall discriminate against another person in private employment, housing, education or commerce, because of that person’s actual or perceived race, color, ethnicity, creed, age, national origin, religion, citizenship status, gender, gender identity or expression, sexual orientation, disability, medical condition, genetic information, marital status, partnership status, employment status, source of income, military status, veteran status, or primary language.”
• Oakland, CA: The city’s gender inclusion policy states “All employees, applicants, and contractors must be treated with dignity and respect, regardless of gender, gender identity, and gender expression. City employees may not harass, discriminate, or retaliate against anyone based on their gender expression, gender identity, or transition status.
• Palm Springs, CA: All businesses seeking city contracts must provide equal benefits policies for all workers, including transgender employees. 
• Sacramento, CA: City law explicitly bars discrimination against workers based on gender identity and expression. 
• San Diego, CA: The city municipal code states that it “shall be an unlawful employment practice for an employer to fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment on the basis (in whole or in part) of such individual’s sexual orientation or gender identity.
• San Francisco, CA: The city’s gender inclusion policy states that “members may not harass, discriminate, or retaliate against anyone based on their actual or perceived gender identity, gender expression, or transgender or transitioning status.”
• Santa Cruz County: The county’s Equal Employment Opportunity/Nondiscrimination Policy states that the county will ensure equal treatment of all employees regardless of sex or gender.  

Protected Leave: Protections at the Federal, State, and Local Levels

Protected leave discrimination in the workplace occurs when an employer treats an employee unfairly or negatively because the employee takes, requests, or attempts to take legally protected leave. Protected leave refers to time off work that is safeguarded by federal, state, or local laws, allowing employees to address specific personal or family needs without fear of retaliation or adverse consequences.

Protected leave discrimination can manifest in various ways, including:

1. Denial of Leave: Refusing to grant leave even though the employee meets the legal requirements.
2. Retaliation: Termination, demotion, or reduction in hours after an employee takes or requests leave.
3. Hostile Work Environment: Subjecting employees to harassment or hostility because they used or requested leave.
4. Unequal Treatment: Treating employees differently compared to coworkers who have not taken leave, such as denying promotions, raises, or training opportunities.
5. Interference: Discouraging or hindering employees from taking leave, such as implying that it will harm their career.

Let’s break down the federal, state, and local laws in California that provide the types of protected leave that most frequently impact parents:

Federal Laws Regarding Protected Leave

The Family and Medical Leave Act (FMLA) is a cornerstone federal law that prohibits employers from discriminating against or retaliating against workers for taking protected leave. Its protections are especially significant in the context of parental discrimination, as they ensure that employees can take time off for family and medical reasons without fear of losing their jobs or facing negative repercussions. 

Enacted in 1993, the FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave per year for specific family and medical reasons. These include:

• The birth, adoption, or foster care placement of a child.
• Caring for a spouse, child, or parent with a serious health condition.
• Addressing personal serious health conditions that affect the employee’s ability to perform their job.

Employees are entitled to return to their same or an equivalent position after their leave ends and cannot be subjected to retaliation for taking FMLA leave.

Although the FMLA does not explicitly prohibit “parental discrimination,” it provides critical protections that combat workplace biases tied to family responsibilities. The law ensures that workers can fulfill caregiving roles without being penalized, making it an essential tool for addressing situations where parental responsibilities might otherwise lead to unfair treatment.

1. Protecting Leave for Parental Responsibilities

The FMLA guarantees that parents can take leave for the birth, adoption, or serious illness of a child. If an employer penalizes a parent for taking this leave—such as by reducing their hours, denying promotions, or retaliating through termination—it constitutes a violation of the FMLA. For example:

• A mother denied a raise after taking maternity leave can claim FMLA retaliation.
• A father who is demoted for taking paternity leave can also seek remedies under the FMLA.

2. Combating Gender Bias in Leave Usage

One significant aspect of the FMLA is that it applies equally to men and women, challenging traditional gender roles around caregiving. Historically, mothers have faced discrimination for taking leave, while fathers have been discouraged from doing so due to stereotypes that caregiving is a woman’s responsibility. The FMLA ensures that both genders have equal rights to take leave and provides recourse if employers treat one gender less favorably for doing so.

For example, a father denied parental leave because the employer believes men should not be primary caregivers may have both an FMLA and a gender discrimination claim under Title VII of the Civil Rights Act.

3. Addressing Intersectionality With Other Laws

The FMLA often intersects with laws like the Pregnancy Discrimination Act (PDA) and the Fair Employment and Housing Act (FEHA) in California. For instance, a pregnant employee may take FMLA leave for childbirth and recovery and be protected under the PDA if she faces discrimination for her pregnancy. Meanwhile, a parent returning from FMLA leave may invoke protections under the Equal Pay Act or state-level anti-discrimination laws if they experience pay disparities or other discriminatory practices upon returning to work.

4. Retaliation Protections

The FMLA specifically prohibits retaliation against employees for requesting or taking leave. This protection is essential for parents who might otherwise face punitive actions for balancing work with caregiving. Retaliation could include:

• Negative performance reviews or demotions after returning from leave.
• Exclusion from career advancement opportunities.

Limitations of the FMLA

While the FMLA provides critical protections, it has limitations that can leave some parents vulnerable to workplace discrimination. The FMLA only applies to employers with 50 or more employees and to workers who meet certain eligibility requirements, such as having worked for the employer for at least 12 months and 1,250 hours in the preceding year. The leave is unpaid, which can discourage many parents from using it, especially in lower-income households.

Despite these challenges, the FMLA remains a powerful legal tool to protect parents from discrimination tied to their caregiving responsibilities.

California Laws Safeguarding Protected Leave

California state laws provide some of the most comprehensive protections for workers taking protected leave, addressing workplace discrimination and retaliation. These laws—California Family Rights Act (CFRA), Paid Family Leave (PFL), Healthy Workplaces Healthy Families Act, and School Activities Leave—intersect with parental discrimination by ensuring parents and caregivers can balance family responsibilities with work without fear of adverse treatment.

California Family Rights Act (CFRA)

The CFRA, similar to the federal Family and Medical Leave Act (FMLA), provides eligible employees with up to 12 weeks of unpaid, job-protected leave within a 12-month period for family and medical reasons. These reasons include:

• Bonding with a newborn, adopted, or foster child.
• Caring for a seriously ill family member (including children, spouses, parents, grandparents, siblings, and domestic partners).
• Addressing the employee’s own serious health condition.

The CFRA applies to employers with five or more employees—a broader scope than the FMLA, which applies to employers with 50 or more employees.

The CFRA protects parents and caregivers from retaliation or discrimination for taking leave. For example:

• A mother returning from CFRA leave to bond with her newborn cannot be demoted, reassigned, or denied a promotion because of her leave.
• A father taking CFRA leave to care for an adopted child is equally entitled to job protection and cannot face adverse treatment based on outdated gender stereotypes about caregiving.

Employers who penalize workers for CFRA leave may face discrimination claims under the California Fair Employment and Housing Act (FEHA) in addition to CFRA violations.

Paid Family Leave (PFL)

California’s Paid Family Leave program provides workers with partial wage replacement for up to eight weeks to bond with a new child within the first year of birth, adoption, or foster placement or to care for a seriously ill designated person.

Funded through the state disability insurance (SDI) program, PFL is available to most employees, regardless of employer size. While it does not provide job protection, PFL can overlap with CFRA leave for eligible employees, ensuring both income and job security.

Additionally, Assembly Bill 2123 has just been signed and will go into effect on January 1, 2025. This law prohibits employers from requiring employees to take up to two weeks of vacation time before becoming eligible for PFL, further reducing the burden on workers who need to care for their families. 

While PFL is primarily a wage-replacement program, its intersection with CFRA ensures that parents can take leave without fear of financial or job-related repercussions. For instance, a parent who takes PFL for bonding leave and faces adverse treatment afterward, such as exclusion from projects or reduced hours, could claim parental discrimination under FEHA or CFRA.

Healthy Workplaces Healthy Families Act 

The Healthy Workplaces Healthy Families Act requires employers to provide workers with paid sick leave to care for themselves or family members. Employees accrue at least one hour of sick leave for every 30 hours worked, with a minimum of 24 hours (or three days) of sick leave per year.

Sick leave can be used for:

• Caring for a child, spouse, parent, or other family members.
• Addressing personal or family health needs, including preventive care.

This law supports parents by ensuring they can take time off for their children’s or their own health without retaliation. For example, a parent who uses paid sick leave to care for a child with the flu cannot be penalized for absenteeism or disciplined for taking the time off. An employer who denies promotions to workers who frequently use sick leave for family responsibilities may face discrimination claims if such actions disproportionately affect parents or caregivers.

School Activities Leave

Under California Labor Code § 230.8, employers with 25 or more employees must allow parents, guardians, or grandparents with custody of a child to take up to 40 hours of unpaid leave annually to participate in school-related activities. This includes:

• Attending parent-teacher conferences.
• Participating in school events.
• Responding to school emergencies.
• Visiting open houses or enrolling a child in a new school. 

The leave is limited to eight hours per month and must be used to support a child’s education.

School Activities Leave ensures parents can participate in their children’s educational lives without risking their employment. For example, if an employer penalizes a worker for attending a parent-teacher conference during approved leave, it could constitute retaliation. Repeated denials of School Activities Leave requests may disproportionately impact parents, potentially creating a case for discrimination.

How These Laws Work Together to Combat Parental Discrimination

While none of these laws explicitly address “parental discrimination,” they collectively provide safeguards for workers balancing family responsibilities with professional obligations. Here’s how they intersect:

1. Job Protection: The CFRA ensures parents cannot be fired, demoted, or penalized for taking leave to bond with children or care for family members.
2. Wage Replacement: PFL ensures parents have income support during family leave, reducing financial strain and encouraging leave use.
3. Flexibility: The Healthy Workplaces Healthy Families Act and School Activities Leave provide essential time off for routine caregiving and school-related responsibilities.
4. Retaliation Protections: Any adverse action taken against employees for using these protected leaves may be challenged under broader anti-discrimination laws, such as FEHA or the federal Title VII of the Civil Rights Act.

By addressing leave-specific needs and prohibiting retaliation, California’s leave laws indirectly combat workplace biases and ensure parents can fulfill their roles without workplace repercussions. Employers who fail to honor these rights risk legal action, emphasizing the need for fair treatment of working parents and caregivers.

Local Parental Leave Laws: San Francisco

San Francisco has enacted progressive laws to protect employees from discrimination based on family status and ensure equitable access to parental leave and family-friendly workplace policies. The Paid Parental Leave Ordinance (PPLO) and the Family Friendly Workplace Ordinance (FFWO) address workplace inequalities, intersecting with parental discrimination by safeguarding parents’ rights and promoting fair treatment.

Paid Parental Leave Ordinance (PPLO) 

The Paid Parental Leave Ordinance, implemented in 2017, enhances California’s Paid Family Leave (PFL) by requiring employers to supplement state-provided wage replacement benefits so that employees on parental leave receive their full regular wages. Key features include:

• Coverage: Employers with 20 or more employees must comply. Employees must work at least 8 hours per week in San Francisco and have been employed by the same employer for 180 days.
• Duration: Employees are entitled to up to 8 weeks of fully paid parental leave for bonding with a newborn, adopted child, or foster child within one year of the child’s arrival.
• Coordination With PFL: Employers are required to cover the gap between the PFL benefit (which provides up to 60-70% of wages) and the employee’s full wages.

The PPLO directly addresses one aspect of parental discrimination: financial inequity and penalization of parents who take time off to bond with their children. By requiring employers to provide full wage replacement, the ordinance:

• Ensures that parents, particularly low- and middle-income workers, can take leave without financial hardship.
• Prevents retaliatory practices, such as reducing pay or benefits for employees taking parental leave.
• Reinforces the idea that caregiving responsibilities are valid and supported, reducing stigma or bias against parents in the workplace.

Employers who retaliate against employees for taking PPLO leave may also violate state or federal anti-discrimination laws, such as the California Family Rights Act (CFRA) or the Pregnancy Discrimination Act (PDA).

Family Friendly Workplace Ordinance (FFWO)

The Family Friendly Workplace Ordinance, enacted in 2014, provides employees the right to request flexible or predictable work arrangements to accommodate caregiving responsibilities for:

• A child under 18.
• A family member with a serious health condition.
• An elderly parent.

Employers must:

• Respond to requests in writing within 21 days.
• Provide a bona fide business reason for denying requests.
• Prohibit retaliation against employees for exercising their rights under the ordinance.

The FFWO protects employees with caregiving responsibilities from unfair treatment by promoting flexibility in the workplace. It intersects with parental discrimination in several ways. First, the ordinance helps combat stereotypes about parents being less committed or productive due to their caregiving roles. For example, if an employee requests a predictable schedule to care for their child and faces negative repercussions, this could constitute both FFWO and broader anti-discrimination violations.

Next, by requiring employers to review requests in good faith, the ordinance promotes workplace equity for parents and caregivers.

Finally, retaliation for requesting family-friendly accommodations, such as denial of promotions or reassignment to less favorable roles, is prohibited under the ordinance and aligns with protections against parental discrimination under laws like the Fair Employment and Housing Act (FEHA).

Local Parental Leave Laws: San Diego

San Diego has implemented specific policies to support employees with family responsibilities, aiming to prevent discrimination based on family status and parental leave. Two key initiatives are the Parental Leave Benefits Package and the Working Families Ordinance. Here’s an overview of each and their implications for parental discrimination:

Parental Leave Benefits Package

In June 2023, San Diego expanded its parental leave benefits for city employees. Key components include:

• Increased Paid Leave: The amount of paid parental leave was doubled from 160 hours (four weeks) to 320 hours (eight weeks). 
• Immediate Disability Benefits: The previous 30-day waiting period for disability benefits related to pregnancy, childbirth, or related medical conditions was eliminated, allowing employees to access benefits immediately upon need. 
• Reduced Eligibility Requirement: The employment duration required to access these benefits was reduced from one year to 30 days, making benefits accessible to newer employees. 

By providing substantial paid leave, this ordinance supports all parents, regardless of gender, in balancing work and family responsibilities, challenging traditional gender roles. Ensuring immediate access to disability benefits and reducing eligibility requirements help prevent financial disadvantages that could deter employees from taking necessary leave. Finally, clear policies on parental leave reduce ambiguity, decreasing the likelihood of retaliation or discrimination against employees taking leave.

Working Families Ordinance

Adopted by the San Diego County Board of Supervisors in February 2022, the Working Families Ordinance establishes fair employment standards on county construction projects and county-owned leased property. Key provisions include:

• Prevailing Wages: Contractors on county construction projects over $1 million must pay prevailing wages. 
• Skilled and Trained Workforce: Projects must utilize a skilled and trained workforce, ensuring quality and safety. 
• Paid Sick Leave: Employers are required to provide paid sick leave to employees, enhancing worker welfare. 
• Anti-Retaliation Protections: The ordinance prohibits retaliation against employees exercising their rights under its provisions. 

The ordinance supports working families by:

• Ensuring Fair Compensation: By mandating prevailing wages, it helps working parents earn a fair income, reducing economic pressures that can lead to discrimination.
• Providing Paid Sick Leave: Access to paid sick leave allows parents to care for their children without fear of losing income or facing employer retaliation.
• Protecting Against Retaliation: Anti-retaliation measures safeguard parents who assert their rights, fostering a more equitable workplace.

San Diego’s Parental Leave Benefits Package and Working Families Ordinance work in tandem to support employees with family responsibilities. By enhancing parental leave, ensuring fair wages, and protecting against retaliation, these policies address factors contributing to parental discrimination, promoting a more inclusive and supportive work environment for all employees.

Other Forms of Protections for Parents: Federal, State, and Local Laws

Federal laws such as the Fair Labor Standards Act (FLSA), the Pregnant Workers Fairness Act (PWFA), and the Pregnancy Discrimination Act (PDA) provide critical protections against workplace discrimination based on pregnancy and lactation. These laws intersect with parental discrimination by addressing specific biases and barriers that disproportionately affect pregnant and nursing workers, helping ensure fair treatment in the workplace.

Fair Labor Standards Act (FLSA) – Lactation Accommodation Requirements

The FLSA, as amended by the Affordable Care Act (ACA), requires employers to provide reasonable accommodations for lactating employees. Specifically, employers must:

• Allow nursing employees reasonable break time to express breast milk for up to one year after the child’s birth.
• Provide a private, non-bathroom space for milk expression.

Employers with fewer than 50 employees may be exempt if compliance imposes an undue hardship.

The FLSA’s lactation accommodations ensure that nursing parents are not unfairly treated due to their biological role in caregiving. For instance, denying lactation breaks or adequate facilities could force a nursing parent to stop breastfeeding, effectively penalizing them for a caregiving choice. This could be considered parental discrimination, as it undermines their ability to balance work and parental responsibilities. 

Retaliation against employees for requesting lactation accommodations violates the FLSA and could also intersect with broader gender discrimination claims under Title VII of the Civil Rights Act.

Pregnant Workers Fairness Act (PWFA) 

Enacted in 2023, the PWFA requires employers to provide reasonable accommodations for pregnancy, childbirth, and related medical conditions, as long as it does not impose an undue hardship. Unlike the Americans with Disabilities Act (ADA), which applies only to pregnancy-related medical complications, the PWFA covers typical pregnancy needs, such as the ability to sit more frequently, adjust workloads, or avoid heavy lifting.

The PWFA also prohibits employers from:

• Denying employment opportunities based on the need for pregnancy-related accommodations.
• Forcing workers to take leave when reasonable accommodations would allow them to continue working.

The PWFA helps address workplace biases and stereotypes about pregnant workers, which often overlap with broader parental discrimination. If an employer assumes a pregnant worker cannot perform her job effectively and denies her a promotion, this could violate both the PWFA and broader anti-discrimination protections. Accommodations under the PWFA enable pregnant workers to stay employed and contribute fully, challenging assumptions that pregnant individuals are less committed or capable.

By mandating accommodations, the PWFA supports equity in the workplace for expectant parents, reducing structural barriers that lead to discrimination.

Pregnancy Discrimination Act (PDA)

The PDA, passed in 1978, is an amendment to Title VII of the Civil Rights Act that explicitly prohibits discrimination based on pregnancy, childbirth, or related medical conditions. Under the PDA, pregnant workers must be treated the same as other employees with similar abilities or limitations. Furthermore, employers cannot fire, refuse to hire, or take other adverse actions against an employee because of pregnancy or related conditions.

The PDA covers all aspects of employment, including hiring, promotions, pay, job assignments, and benefits.

The PDA addresses biases and stereotypes about pregnancy that often extend to parents more broadly. If a pregnant employee is denied a promotion because the employer assumes she will be less committed after giving birth, this constitutes sex discrimination under the PDA. Such assumptions are often tied to broader stereotypes about parenting and caregiving roles. Meanwhile, fathers or non-pregnant partners may invoke the PDA if they are treated less favorably due to their association with a pregnant partner, though such claims are more commonly addressed under Title VII or state laws.

The PDA also intersects with lactation accommodation issues, as lactation is considered a pregnancy-related condition. Employers who fail to accommodate nursing employees may violate the PDA in addition to the FLSA.

How These Laws Combat Parental Discrimination

The FLSA, PWFA, and PDA work together to ensure that pregnancy and lactation are not barriers to equal treatment in the workplace. By addressing specific aspects of discrimination that affect pregnant and nursing workers, these laws indirectly combat broader parental discrimination, helping create a more inclusive and equitable workplace for parents. Employers who fail to comply with these protections risk legal consequences under federal law.

Other State Protections for Working Parents

California state laws provide extensive protections against workplace discrimination related to pregnancy, lactation, and other intersecting traits. These laws address both specific conditions and broader intersectional concerns, ensuring that workers, particularly parents, are shielded from discrimination. Here’s an explanation of these laws and how they intersect with parental discrimination:

California Lactation Accommodation Law

This law, under Labor Code Section 1030, requires employers to:

• Provide a private, non-bathroom space close to the employee’s workspace for expressing breast milk.
• Allow reasonable lactation breaks, which must be compensated if they overlap with regular break time.

Employers with fewer than 50 employees may seek exemption if compliance creates an undue hardship. Employers who fail to meet these requirements face civil penalties and possible legal action.

This law ensures that lactating parents are not penalized for their caregiving responsibilities. For example, a mother who is denied lactation breaks or adequate facilities may face discrimination rooted in outdated gender stereotypes, which is a form of parental discrimination. Retaliation against employees for requesting lactation accommodations violates both this law and broader anti-discrimination protections under the California Fair Employment and Housing Act (FEHA).

Pregnancy Disability Leave 

The California Pregnancy Disability Leave Law requires employers with five or more employees to provide up to four months of job-protected leave for employees unable to work due to pregnancy, childbirth, or related medical conditions. This leave can be taken intermittently or continuously and is available regardless of the employee’s tenure or hours worked.

PDL protects pregnant workers from being forced out of the workplace or denied accommodations. For instance, if an employer fires a pregnant employee instead of providing reasonable accommodations, this would constitute discrimination under PDL and potentially FEHA. Parents often face discrimination tied to assumptions about their caregiving roles. PDL ensures these assumptions do not disproportionately harm pregnant workers.

Reproductive Loss Leave 

California law allows employees to use accrued sick leave for reproductive health issues, including miscarriage, stillbirth, or other pregnancy-related losses. Some employers may also offer unpaid leave for these circumstances.

Providing leave for reproductive loss recognizes the challenges parents face during such events and prevents workplace discrimination tied to these experiences. An employer penalizing an employee for taking time off after a pregnancy loss could face claims of disability or gender discrimination under FEHA, as such actions are closely tied to gendered caregiving roles.

Marital Status Discrimination

Under California law, employers are prohibited from discriminating against employees based on their marital status. This includes treating employees differently because they are married, divorced, or single.

Marital status discrimination often overlaps with parental discrimination, particularly when employers make assumptions about an employee’s availability or priorities based on their family structure. An employer denying opportunities to single parents due to stereotypes about their ability to balance work and caregiving responsibilities may violate this law.

Association With a Disabled Person Discrimination

FEHA prohibits discrimination against employees based on their association with a person who has a disability. This includes caregiving responsibilities for disabled family members, such as children or spouses.

Parents of children with disabilities are particularly vulnerable to discrimination. For example, an employer penalizing an employee for frequently using leave to care for a disabled child may be discriminating based on association with a disabled person. This intersects with parental discrimination because it disproportionately affects employees with caregiving responsibilities.

Prohibition on Discrimination Based on Intersecting Traits (Senate Bill (SB) 1137) [CITE]

Effective January 1, 2024, SB 1137 explicitly prohibits discrimination based on intersecting traits under FEHA. This includes situations where an employee faces discrimination for being part of multiple protected categories (e.g., gender, race, pregnancy, and caregiving status).

SB 1137 addresses intersectional discrimination, which is often at the heart of parental discrimination cases. For example, a Black mother who is denied opportunities due to biases about her gender, race, and caregiving responsibilities is protected under SB 1137. This law strengthens existing protections by explicitly addressing the compounded biases that affect parents from marginalized groups.

How These Laws Work Together to Address Parental Discrimination

California’s comprehensive legal framework combats parental discrimination by:

1. Ensuring Specific Protections: Laws like the California Lactation Accommodation Law and PDL address the unique challenges faced by pregnant and nursing workers, ensuring their rights are protected.
2. Recognizing Intersectionality: SB 1137 explicitly acknowledges that discrimination is often rooted in multiple intersecting traits, providing greater protections for parents who experience compounded biases.
3. Protecting Caregiving Roles: Laws like the prohibition on discrimination based on association with a disabled person and marital status discrimination safeguard employees from biases tied to caregiving responsibilities.

Together, these laws create a robust framework that not only addresses pregnancy- and lactation-related discrimination but also tackles broader biases and assumptions that disproportionately impact parents. Employers who fail to comply with these laws risk significant legal consequences.

Recognizing Discrimination as a Working Parent

Recognizing workplace discrimination as a parent is critical to protecting your rights and maintaining fair treatment. Discrimination can be subtle or overt, often rooted in biases about caregiving responsibilities, gender roles, or family dynamics. Understanding how to identify discriminatory behavior and the steps you can take to address it can empower you to act effectively.

Recognizing Workplace Discrimination

Parental discrimination may take various forms, including:

1. Unequal Treatment: Parents may notice they are treated differently from colleagues without caregiving responsibilities. Examples include being overlooked for promotions or key projects, receiving less favorable assignments or fewer opportunities, or facing stricter performance evaluations after announcing pregnancy or parental leave.
2. Retaliation for Exercising Rights: Discrimination can occur when parents take legally protected actions, such as requesting parental leave under laws like FEHA or the CFRA, or using sick leave or requesting accommodations for childcare or lactation needs. Retaliation might include demotion, reduced hours, or even termination.
3. Hostile Work Environment: Subtle or overt behaviors may create a toxic atmosphere for parents, such as comments questioning a parent’s commitment to their job, being excluded from meetings or professional opportunities, or facing harassment or ridicule for balancing work and family life.
4. Disparate Pay: Parents, especially mothers, may experience a “motherhood penalty,” where they are paid less or receive fewer raises than colleagues performing similar work.
5. Denied Accommodations: Discrimination can occur when employers fail to provide reasonable accommodations, such as refusing lactation breaks or suitable facilities or denying schedule adjustments to attend to childcare or school activities.

Taking Action Against Discrimination

If you believe you are facing parental discrimination, you can take several steps to address the issue:

1. Document the Discrimination: Keep detailed records of discriminatory incidents, including dates, times, and descriptions of the events, emails, performance reviews, or other evidence showing disparate treatment, and notes on witnesses who may have observed the behavior. Documentation is critical in building a strong case if you pursue legal action.
2. Understand Your Rights: Familiarize yourself with federal and state laws protecting parents, including the FMLA, CFRA, PDA, FEHA, and other laws discussed above. Knowing your rights helps you identify unlawful treatment and strengthens your position when raising concerns.
3. Report the Issue Internally: Most workplaces have policies and procedures for addressing discrimination. You can file a complaint with your HR department or manager or request reasonable accommodations, such as schedule adjustments or private lactation spaces. Ensure that you file complaints in writing to create a paper trail.
4. Seek External Assistance: If internal efforts do not resolve the issue, you can consult an employment attorney. The right attorney can help you understand your legal options, evaluate your case, and, if necessary, file a lawsuit. Many law firms specialize in workplace discrimination cases and offer free consultations.
5. Connect With Support Networks: Seek support from colleagues, employee resource groups, or professional organizations advocating for workplace equity. These networks can provide guidance and share strategies for addressing discrimination.

Recognizing workplace discrimination as a parent requires vigilance and an understanding of your legal protections. By documenting incidents, understanding your rights, and leveraging internal and external resources, you can address unfair treatment and advocate for change. Discrimination not only undermines individual careers but also perpetuates systemic inequities, making it essential to confront these behaviors for the benefit of all working parents.

How Le Clerc & Le Clerc, LLP Can Help

At Le Clerc & Le Clerc, LLP, we are dedicated to defending the rights of working parents in California. If you believe you are experiencing gender discrimination in the workplace, our skilled employment law attorneys can help you:

• File complaints with the appropriate agencies, such as the Civil Rights Department (CRD)
• Pursue claims under state and federal anti-discrimination laws
• Obtain compensation for lost wages, emotional distress, or other damages caused by unlawful discrimination

We offer compassionate, results-oriented legal representation designed to hold employers accountable and help you navigate the complex legal landscape.

Contact Le Clerc & Le Clerc, LLP Today

If you are a working parent facing gender discrimination at work, you don’t have to go through it alone. Contact Le Clerc & Le Clerc, LLP today to schedule a consultation. We are committed to fighting for your rights and helping you achieve justice.