Category: Pregnancy discrimination, Uncategorized

Earlier this month Sarah Lalou Lessing, an ex-Cal Poly employee, filed a lawsuit against her former employer, alleging that her termination was based on her pregnancy. Lessing began working at Cal Poly in April 2016 and learned of her pregnancy in September of that year. In late September Lessing became ill and notified her employer that she would need to take a one-month leave of absence from her position due to complications with her pregnancy. Her request was allegedly sent to the HR department and her immediate supervisor and subsequently approved. However, shortly into her leave of absence, Lessing received a notice of termination from her employer. Cal Poly argues that Lessing was not relieved of her duties because of her pregnancy, but rather because she was a “probationary employee” who had performance-related issues. Cal Poly also argues that their internal pregnancy disability policy requires employees to be employed for at least one year to be eligible for such leave. In her complaint, Lessing argues that her termination was based on her “pregnancy, sex, and medical condition.”

The case is ongoing, but Lessing’s attorney seems confident that her claim is substantial. He cites several accolades Lessing received from co-workers and management, as well as a striking lack of disciplinary write-ups in her file. It is illegal for employer to discriminate against women because of their pregnancy and any related conditions, so if Cal Poly is unable to provide substantial evidence of their reason(s) for terminating Lessing’s position – especially after they approved her pregnancy disability leave request – they may be liable for damages she sustained as a result.

Lessing’s termination poses an important question to women across California: what legal protections are in place to ensure pregnant women are not victim of discriminatory employment practices?

Legal Protections for Pregnant Women in California

Pregnant women – as well as new mothers – have significant legal protections in California. The state has both passed comprehensive legislation directly aimed at protecting pregnancy and motherhood and reformed discrimination legislation to include pregnant women as a protected class. Here are a few of the most notable laws that offer protection to California’s pregnant women and mothers.

California Fair Employment and Housing Act (“CFHA”) 

The CFHA makes it illegal for California employers to “fire, refuse to hire, bar, harass, discharge, or otherwise discriminate against someone because of their pregnancy, childbirth, or related condition.” Any California employers with five or more employees are subject to the law. Employers are required to permit up to four months of unpaid disability leave to women for pregnancy, childbirth, and related conditions.

California Pregnancy Disability Leave (“PDL”)

The interesting thing about PDL – especially for ex Cal Poly employee Sarah Lalou Lessing – is that every woman who works for a covered employer is eligible for pregnancy disability leave despite her employment status (full time vs. part time) or the length of employment. Under PDL women with pregnancy, childbirth, or related conditions (including physical and mental illnesses) are entitled to up to four months of unpaid disability leave. Women are not required to take all four months at one time and are permitted to take the leave in smaller increments when necessary. Events that may qualify a female employee for PDL include severe morning sickness, physician-ordered bed rest, childbirth and recovery, and prenatal visits and care.

If the woman’s pregnancy-related disability exceeds the four months provided by PDL, qualified employers are still under an FEHA obligation to provide “reasonable accommodation” to pregnant women and new mothers. What is reasonable accommodation? Under both PDL and FEHA, reasonable accommodation may include:

  • Transferring pregnant women to less strenuous or hazardous positions within the same company;
  • Changing the work environment to accommodate a pregnancy while still allowing the woman to execute essential job functions; or
  • Permitting additional time for disability leave.

California Family Rights Act (“CFRA”)

The CFRA provides additional rights to new mothers. If an employee has worked for an employer for at least 1250 hours in the past 12 months, and the employer has at least 50 employees within a 75 mile radius, she is entitled to 12 weeks of unpaid leave to bond with the newborn child. This CFRA leave is distinct from PDL or FEHA leave and does not run concurrently. Women who took FEHA and/or PDL are entitled to an additional 12 weeks under CFRA.

When Can Employers Terminate Pregnant Employees Without Fear of Retribution?

Even though California provides female and pregnant employees with protection from employment discrimination, employers are not entirely barred from terminating pregnant employees. The employment protection and discrimination laws have carve-outs and exceptions that help employers carry on business activities in a semi-normal fashion.

Employers may terminate women who are pregnant, suffer a related illness, or give birth if the position they held prior to leave is eliminated due to layoffs and/or location closure. Additionally, employers are not barred from terminating pregnant employees for legitimate performance issues that are entirely unrelated to a pregnancy. When defending their actions in terminating Lessing, Cal Poly will be required to show evidence that terminating her was entirely related to her performance and that her pregnancy was not a contributing factor.

Experienced Pregnancy Discrimination Attorneys

Employers may not discriminate against pregnant employees and they are required, by law, to provide the same or similar position when pregnancy employees return from leave. If you or someone you know has been the victim of pregnancy discrimination, contact our experienced employment discrimination attorneys today. When you call, we will review your case, determine potential liability, and explain the legal options available to you.