PREGNANCY DISCRIMINATION AND YOUR RIGHTS
Can I be fired for taking pregnancy leave?
No. California employers are prohibited from discriminating against people based on being pregnant, or any other protected class such as race, age, and national origin.
If you are fired or disciplined because of your pregnancy or pregnancy leave, you can sue your employer for pregnancy discrimination.
California juries are very sympathetic to employees who are discriminated against for pregnancy leave, and for being fired while they’re pregnant or because they’re pregnant. California juries are very motivated to protect the woman’s right to have and provide for her child.
The law is also very accommodating to pregnant employees, in terms of your ability to have an effective claim that your pregnancy was a substantial motivating factor, as it related to your discipline, demotion, or termination. We highly recommend if any of these occur you while you are pregnant, you contact us right away to evaluate your case.
Should I notify my employer if I am pregnant?
Yes, absolutely. An employee should notify her employer that she is pregnant, ideally in writing. This prevents the employer from later trying to deny that knowledge. Once the employer is properly notified, any future discipline or termination of the pregnant employee could be pregnancy discrimination.
Without such notification, an employer might claim they couldn’t have discriminated, because he or she did not know about the employee’s pregnancy. For example, they might say it was simply coincidence that they decided to eliminate several positions (including yours).
So we definitely recommend that you tell your employer about your pregancy, preferably in an email from a personal account (like Yahoo or Gmail, because the account it is controlled by you). This way there is proof that the notification was delivered.
In large organizations, we recommend that you email the Human Resources Department, alterting them that you are pregnant and asking about the company policies regarding pregnancy leave. The employer or HR Department should respond that the employee is entitled to either FMLA (Family and Medical Leave Act) or CFRA (California Family Rights Act ) leave.
What if I didn’t notify my employer in writing?
Not to worry. Though it is always best to alert your employer or HR Department in writing that you are pregnant in order to protect yourself, in many cases employees do not, for fear that they will be disciplined or fired.
In those cases, there are a lot of ways we can try to prove that your employer knew of your pregnancy. These include comments by co-workers, the visible body changes associated with pregnancy, or more subtle signs like diet changes, bathroom trips, morning nausea, taking time off to go to the doctor, any such effect on your work that an employer could notice.
It is always likely we can show that your employer knew you were pregnant, even in cases where there was only verbal notification to the employer, or even if you did not directly mention it.
An employee’s word that she has told her supervisor that she was pregnant is admissible in court to show that the employer knew. The employer might deny the statement was made, but again, in combination with the weight gain and the morning sickness and other significant symptoms like time off to see the doctor more frequently or more frequent bathroom breaks, it’s much easier for a jury to decide that the employer knew.
More importantly, whether or not your employer knew you were pregnant is usually not the battleground. In many cases, they will intstead claim that they had other reasons for a termination or disciplinary aciton. They may cite work performance, disciplinary issues, or interpersonal issues with co-workers or other supervisors.
Those kinds of excuses for pregnancy discrimination can be overcome by showing you had worked for years with positive annual employment reviews or with other performance indications that there was no performance issue until you became pregnant.
This is how an employee can show that the pregnancy was in fact the main motivating factor for termination or other adverse employment action.
What are the FMLA and CFRA?
FMLA leave and CFRA leave are the exact same thing. One is federal and the other is state. If you work at the post office, you have to take FMLA leave, because that’s a federal employer. If you work at any other private organization or even a state governmental agency, then CFRA leave is more beneficial to employees.
CFRA leave is the California version of FMLA, available to employees who have worked for a company with more than 50 employees for over one year. Sometimes smaller employers also allow FMLA leave even though they are not required to by law. As a benefit of employment, those employees are still protected by the CFRA law, meaning their positions are protected for up to 12 weeks of leave.
If you work for a small employer, you need to make sure you get a CFRA certification signed by the employer and your doctor within 15 days of the start of your leave. Not all medical leaves are CFRA-qualified medical leaves. In order to designate your medical leave as a CFRA leave, a specially designed form must be completed.
Certain companies use specially designed forms. If your employer is not one of those employers that uses the specially designed form, a generic CFRA leave form is available from the EDD website at http://edd.ca.gov. There are also other websites where you can download a CFRA or an FMLA form.
Pregnancy Disability Leave Law (PDLL)
Beyond the 12 week CFRA leave, there is something called Pregnancy Disability Leave Law. With your doctor’s certification, no matter how long you’ve worked for your employer, you can take up to four months of Pregnancy Disability Leave (PDLL), if your doctor certifies that your pregnancy is dangerous to you or to your fetus and/or even after you deliver, if you’re still recovering from the effects of your delivery or cesarean section.
PDLL can be used in combination with CFRA leave, giving a pregnant employee to up to four months or Pregnancy Disability Leave followed by up to 12 weeks of CFRA leave. Together, that’s almost seven months off. In addition to all of this, there are laws that protect pregnant employees from discrimination in the state of California.
How DesJardins & Panitz LLP Can Help
These cases are absolutely winnable and absolutely in the best interest of the employee to pursue because they generate substantial verdicts and settlements when it is shown that an employer retaliated, discriminated or otherwise interfered with an employee’s right to take pregnancy leave.
Our firm has a wealth of experience in dealing with pregnancy discrimination and retaliation cases. In the last ten years we’ve handled more than ten pregnancy discrimination lawsuits and most recently obtained and $800,000 settlement for a pregnant client who was fired from her job of just two years prior to giving birth.
You should contact our firm right away if in fact you believe you were terminated because of your pregnancy, whether you believe the employer knew or not.