Pregnancy Discrimination or a PDL or CFRA Leave Violation? What Counts in California and What to Do

Pregnancy discrimination in California means being fired, demoted, refused a job or otherwise treated worse at work because you are pregnant or have a related medical condition. It is illegal for most employers with five or more employees, and pregnancy-based harassment is barred even at smaller ones. Denying pregnancy disability leave (PDL), a pregnancy accommodation, or California Family Rights Act (CFRA) bonding leave is a separate violation, even when no one says anything about your pregnancy. The key limits: CFRA has service and hours requirements that PDL does not, and neither leave protects you from a layoff or other decision unrelated to the pregnancy or leave.

Three different violations, one pregnancy

• Discrimination: the employer took action against you because of pregnancy. The question is the employer’s reason.
• A PDL or accommodation violation: the employer refused leave, a medically advised accommodation or transfer, or reinstatement after leave. The question is whether you were entitled to it and asked.
• A CFRA violation: the employer refused, interfered with or punished you for bonding leave. The question starts with eligibility.

In our reading, one event can raise more than one: a firing the week a worker asks for PDL can be both discrimination and leave interference.

What counts as pregnancy discrimination

The Fair Employment and Housing Act (FEHA) defines “sex” to include “[p]regnancy or medical conditions related to pregnancy,” childbirth and breastfeeding, in Government Code section 12926(r). Section 12940(a) makes it unlawful, because of sex, to refuse to hire, to discharge, or “to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” In our reading, cut hours, a lost promotion or a pulled assignment can fit if pregnancy was the reason; a poor review matters most when it is used to justify discipline or a firing.

FEHA also covers being treated worse because an employer thinks you are pregnant: section 12926(o) extends each protected basis to “[a] perception that the person has” it. Section 12940(h) separately bars retaliation against someone who opposed discrimination or filed a complaint.

What counts as a PDL or accommodation violation

Government Code section 12945 makes it unlawful to refuse leave to an employee “disabled by pregnancy, childbirth, or a related medical condition,” for up to four months, and to refuse that employee’s return to work. PDL has no minimum tenure or hours requirement, the Pregnancy Disability Leave Fact Sheet from the California Civil Rights Department (CRD) says. It also covers time off for prenatal or postnatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, and loss or end of pregnancy, so PDL is not only for the weeks around birth.

Section 12945 also protects workers who keep working. It is unlawful to refuse a reasonable accommodation for a pregnancy-related condition when the employee requests it “with the advice of the employee’s health care provider.” If a pregnant employee asks, on a physician’s advice, the employer must also temporarily transfer the employee to a less strenuous or hazardous position where that can be reasonably accommodated. It need not create a new job, fire anyone, transfer a more senior employee or promote someone who is not qualified. Interfering with any of these rights is itself unlawful under section 12945(a)(4).

On return, the Fact Sheet says the employer must reinstate you to the same position, or in some situations a comparable one. It also says PDL does not protect employees from actions unrelated to pregnancy, such as layoffs.

What counts as a CFRA bonding-leave violation

Government Code section 12945.2 requires an employer of five or more to grant up to 12 workweeks to an employee with more than 12 months of service and at least 1,250 hours in the previous 12 months. It “shall be construed as separate and distinct from Section 12945,” and an employee otherwise qualified for PDL can take it in addition. The CRD’s PDL and bonding guide says bonding leave must be used within one year of the birth, adoption or foster placement, and that reinstatement has exceptions unrelated to leave, such as layoffs.

Refusing an eligible request, interfering with leave, or firing or disciplining someone for using it violates section 12945.2(a), (k) or (q). Our guide to PDL and CFRA baby bonding leave covers how the two leaves fit together, notices and pay.

What to save and when to file

In our reading, these records often show which violation you have and whether you can prove it:

• When the employer learned of the pregnancy, from whom, and what was said.
• Medical notes and requests for leave, an accommodation or a transfer, with dates and the employer’s written answers.
• The adverse action, its date and the reason given, plus any later, different reason.
• How others were treated, such as coworkers who received light duty or kept jobs a restructuring supposedly eliminated.

The CRD complaint page says to submit an employment intake form “within three years of the date you were last harmed,” the three-year limit set by Government Code section 12960(e)(5). You may instead request an immediate right-to-sue notice and file in court. Under section 12965, a lawsuit then generally must be filed within one year from the date of that notice. Before requesting one, read our checklist for an immediate CRD right-to-sue notice. Tolling and other exceptions exist, so confirm your own dates early.