Nursing & Pregnant Worker Rights Solidified in 2 New Federal Laws

July 25, 2023 | by Nassiri Law

Equality in the workforce would be impossible without proper acknowledgement and accommodations for employees who are pregnant or nursing. The inherent physical demands of the condition were long used an excuse to discriminate against these workers. Then in 1978, the federal government passed the Pregnancy Discrimination Act, making it illegal for employers with 15+ employees to discriminate against women because of pregnancy, childbirth, abortion, or any medical conditions related to pregnancy and childbirth. (Applicable medical conditions can include things like severe morning sickness, post-partum depression, gestational diabetes, preeclampsia, pregnancy-induced hypertension, loss of a pregnancy, etc.)

Now, as our Los Angeles pregnancy discrimination lawyers want to make sure everyone’s heard about two much more recent federal protections in place for pregnant and nursing workers. These are:

The PUMP Act

Effective as of December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act expands protection for breastfeeding employees. The law requires most employers to extend reasonable breaks for breastfeeding employees to express milk for their new baby. This accommodation must be granted for one full year after the birth of the child. During these breaks, the employee will not be expected to carry out any work-related duties. However, if the worker is paid hourly and does not work while pumping, the employer is not required to pay for that time.

Furthermore, the area designated for nursing employees must be private, free of intrusion – and not a bathroom.

Although the act technically applies to all employers no matter what size. However, if the employer has fewer than 50 employees, it may file for an exemption to the requirement. To prevail, the employer would have to prove that compliance would result in undue hardship for the company – and the employer would bear the burden of proof. There are also industry-specific exceptions, such as airline and railroad industries.

PWFA

The Pregnant Workers Fairness Act, now part of Title VII of the Civil Rights Act of 1964, went into effect June 27, 2023. It’s applicable to employers with 15+ employees. It requires employers to extend reasonable accommodations in the event a pregnant employee experiences limitations as a result or related to pregnancy, childbirth, or any related medical condition. While you might be required to provide a doctor’s note, companies can only deny these requests if they can prove that granted the accommodation would result in “undue hardship.”

As recently outlined in the U.S. Supreme Court case of Groff v. DeJoy, “undue hardship” goes beyond a de minimis burden. Employers asserting undue hardship bear the burden of proving the accommodation would result in substantial increased costs and other significant impacts in the overall context of the employer’s business.

Some examples of possible accommodations a pregnant employee might seek under the PWFA:

More breaks for resting, sitting, drinking water, eating, or using the restroom.
Hours that are flexible to allow for conditions like morning sickness or to attend doctor’s appointments.
Restrictions on heavy lifting.
Designated parking that is closer to the building.
Excuse from activities that are strenuous or compounds that are risky.

California Pregnancy Discrimination Claim Fails When Court Rules Job Stress Reduction Not Reasonable Accommodation

April 26, 2023 | by Nassiri Law

A California pregnancy discrimination lawsuit failed when both a trial and appellate court agreed that a requested accommodation for job stress reduction was not “reasonable” for an employee working in a high-demand role at a non-profit domestic violence shelter.

Before we dive into why the court decided as it did (and why this same accommodation request might be reasonable in another job post), our Los Angeles pregnancy discrimination lawyers should explain that legal protections against pregnancy discrimination are first and foremost rooted in Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex – which includes pregnancy and pregnancy-related conditions (current, past, or potential pregnancy, medical conditions related to pregnancy/childbirth/lactation, having/not having an abortion and use of birth control, etc.).

There’s also the Americans with Disabilities Act, or ADA, which protects against discrimination on the basis of disability. Although pregnancy isn’t a disability, some pregnant workers may have impairments related to their pregnancy that constitute a disability that entitles the worker to reasonable accommodations at work.

Pregnant and Nursing People Now Have Added Workplace Protections

March 21, 2023 | by Nassiri Law

New protections are now in place for workers who are pregnant or nursing. These federal protections were signed into law as the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). As our Los Angeles employment attorneys can explain, these statutes expand previously-established federal laws that protect both pregnant and nursing employees.

Let’s start with the PWFA, which technically goes into effect in June 2023. The law says that employers with 15+ employees must provide reasonable accommodations to qualified workers/applicants who have temporary physical and/or mental limitations as a result of conditions like pregnancy or childbirth.

As our Los Angeles pregnancy discrimination lawyers can explain, existing federal law does not consider pregnancy a “disability” that entitles a worker to reasonable accommodations. Employers are only required to extend reasonable accommodations for pregnancy, childbirth, or related conditions when similar accommodations are extended to other workers too. The PWFA changes that.

An employee is deemed “qualified” under the PWFA if they have the ability to perform the core functions of the job with those reasonable accommodations. Even if they can’t form a key function of the job for a temporary period of time due to pregnancy, childbirth, or related condition, they may still be qualified if they’ll be able to perform it at some point in the near future AND their current inability to do so isn’t an undue hardship on the employer (similar to the Americans With Disabilities Act).

Also similar to the ADA is the fact that the PWFA compels an interactive process of good faith between all parties in order to identify which accommodations are “reasonable” given the job and the company. Employers aren’t allowed to require workers to take-it-or-leave-it with an accommodation that wasn’t agreed to as a result of that good faith interactive process. Employers also can’t force workers to take leave (paid or unpaid) if some other reasonable accommodation is possible. Asking for a reasonable accommodation on this basis is not a lawful basis for employer retaliation.

Some examples of what may be considered a “reasonable accommodation” under the new law: Continue Reading ›

“Can They Fire Me on Parental Leave?” L.A. Employment Lawyer Answers

February 23, 2023 | by Nassiri Law

As an L.A. employment lawyer, we’ve fielded a fair number of questions about the legality of lay-offs or termination of an employee who is on maternity leave or parental leave.

The answer isn’t always cut-and-dried, depending a fair bit on the specific circumstances of the case.

Of course, losing a job in general is never an easy prospect. But firing or laying off someone who is on parental leave is arguably all kinds of wrong from a moral perspective – especially because employees in this situation truly need both money and health care during this time. One might even consider it “emotional robbery.” Those first few days, weeks, and months bonding with a new baby are priceless. If the parent is suddenly overwhelmed with stress over finances and healthcare, they’re emotional and physical energy will be spent elsewhere – and that’s time they’ll never get back. It can also have serious health consequences, especially for employees who have just given birth.

All this makes it very risky for a company’s reputation and brand to engage in such practices. And yet, some still do. Whether that’s the basis for a successful California employment lawsuit will hinge on a few different factors.

Rights of Employees on Parental Leave

There are federal and state laws that protect the rights of employees on parental leave. California has some of the strongest state-level parental leave protections.

California (as well as a handful of other states) requires paid parental leave – up to 8 weeks of partial wage replacement to eligible workers. It can be used for new parents and/or within 1 year of a child’s birth or foster care placement or adoption. Pregnant mothers are also given up to 4 months of job-protected disability leave prior to parental leave once the child is born. The California Paid Family Leave law (available to workers at companies with 20+ employees) is not solely for new parents, but can also be used to care for a seriously ill close family member. Continue Reading ›

California Pregnancy Discrimination: What to Expect (At Work) When You’re Expecting

November 20, 2022 | by Nassiri Law

Discrimination of pregnant workers is unlawful in California workplaces – an important protection given that women make up half the workforce and 85 percent of working women will become mothers at some point in their careers. And yet, research shows that over the last decade, there have been more than 50,000 pregnancy discrimination claims filed with the U.S. Equal Employment Opportunity Commission. That excludes strictly state-level claims as well as instances that occurred but were never reported.

Recent analysis of national census figures reveal women in the United States work longer during pregnancy and return to work much sooner post-childbirth than ever before. Yet employers too often fail to follow the law, which is to provide reasonable accommodations for women temporarily impaired by a pregnancy- or childbirth-related condition – just as they would any other employee with a disability.

As our Los Angeles employment lawyers can explain, the Pregnancy Discrimination Act of 1978, which amends Title VII of the Civil Rights Act of 1964, prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. It is applicable to individuals (employees and applicants) who are disparately treated in a way that’s unfavorable in any aspect of employment. That can include hiring, termination, salary, tasks and assignments, promotions and benefits, training opportunities, promotions, and other conditions or terms of employment.

What Does Pregnancy Discrimination Look Like?

Even knowing there are laws in place to protect pregnant workers, it’s not always easy to recognize when you’re the one being impacted.

Some examples of California pregnancy discrimination: Continue Reading ›

What is Pregnancy Discrimination – and How To Spot It in the California Workplace

May 4, 2022 | by Nassiri Law

When it comes to California pregnancy discrimination, it’s rarely as obvious as your boss saying, “You’re being fired because you’re pregnant.” That can lead many who have experienced pregnancy discrimination to second-guess themselves, and whether their experience was, in fact, discriminatory and based on their protected status as a pregnant person. In fact, too often, targets of pregnancy discrimination are gaslit into believing they were the problem.

Meanwhile, the Equality and Human Rights Commission reports some 54,000 women a year lose their jobs due to pregnancy. 1 in 5 experience workplace harassment or negative comments due to their pregnancy. 1 in 10 are discouraged from attending their regular doctor’s appointments.

As longtime Los Angeles pregnancy discrimination lawyers, we’re committed to helping those who have experienced these ordeals to sort through these events through a legal lens, with the goal of determining whether they are legally actionable.

The following are some red flags that you may be experiencing discrimination related to pregnancy, childbirth, and parenthood. These include: Continue Reading ›

California Pregnancy Discrimination Claims Continue to Rise

January 10, 2022 | by Nassiri Law

One would think that as workplaces become more progressive and inclusive that pregnancy-based discrimination would increasingly become an issue of the past. Unfortunately, pregnancy discrimination, harassment, and retaliation in California workplaces have continued to rise the past five years.

The U.S. Department of labor reports 85 percent of women will become mothers while working.

According to analysis by Bloomberg Law, the number of federal pregnancy discrimination lawsuits has been climbing since 2016, with a sharp uptick in 2020 and 2021, the latter potentially setting a new record – despite declining birth rates. As our Orange County pregnancy discrimination lawyers know, there are a few explanations for this. Among them:

Economic instability has always created vulnerability for pregnant workers. Employees who need parental leave and make use of employer-supplied health insurance benefits are inevitably going to cost employers more, at least in the short term.
When the economy is in flux, it can be tougher to find a new job after you’ve lost you’re old one. If you’re one of those who have lost their job unfairly – and are having a difficult time landing a new one – you may be more motivated to take legal action against your employer, partly because the economic damage suffered is more significant – especially if you now have an additional dependent.
In the earliest days of the pandemic, there was heightened concern that pregnant women might be at higher risk of infection and/or having severe reactions. Some adverse employment actions may have been taken with good intentions, but that doesn’t necessarily make them legal. Pregnant women were often among the first laid off at the start of COVID-related shutdowns.
When the U.S. Equal Employment Opportunity Commission restarted issuing Notices of Right to Sue back in August of 2020, there was a backlog that had to be processed fairly quickly. Individuals have 90 days to sue from the time they receive that green light. That could account for some of the uptick in 2020 cases.

Do I Have the Right to Sue for California Pregnancy Discrimination?

Pregnancy discrimination cases can arise from failure to hire, demotion, failure to reinstate after pregnancy/childbirth leave, termination, failure to accommodate (including lactation) and more. Discrimination based on pregnancy is often attributed to inaccurate stereotypes, including misguided notions that pregnant women won’t perform their duties as well and mothers won’t fully commit to their jobs because they have kids. Potential employers continue to illegally ask female applicants if they have children or intend to. They may tell wrongly current workers they can’t accommodate them in pregnancy because of the physical nature of the job.

There are both federal and state protections against pregnancy discrimination and retaliation. Continue Reading ›

Worker Says California Pregnancy Discrimination at Amazon Caused Her to Miscarry

August 29, 2021 | by Nassiri Law

A former employee alleges Amazon’s pregnancy discrimination against her and failure to provide accommodations led her to suffer a miscarriage.

According to Vice, the packer was 7 weeks pregnant when she suffered a miscarriage at the fulfillment center where she worked. In the weeks prior, she said she’d begged her warehouse manager and human resource office for lighter duty. She provided a doctor’s note requesting pregnancy accommodations, which indicated she was not to lift, push, pull or carry more than 20 pounds. She was also not to walk or stand for more than half of her shift. Her job involved loading packages onto delivery trucks. The bins she was responsible for lifting could be up to 50 pounds, repeatedly, over a 10-hour shift.

The worker said that when she provided the doctor’s note, she was told verbally that there were no specific areas for light work that wouldn’t require 15 pounds or more of lifting or for her not to be on her feet. Subsequently, her manager began repeatedly questioning why she was sitting, taking longer bathroom breaks and moving more slowly.

The U.S. Centers for Disease Control and Prevention note that the risk of miscarriage can increase when workers routinely engage in heavy lifting, standing on their feet for long hours and bending at the waist. Plaintiff said her manager was not accommodating of any of this. Although workers are only allowed 10 minutes of “time off task” daily, the size of the warehouse means it takes six minutes just to talk to the bathroom and back. It would be virtually impossible to take more than one bathroom break daily with those kind of restrictions. Continue Reading ›

Pregnancy Discrimination Protections Tested in Pending Case

July 30, 2021 | by Nassiri Law

It’s been less than one year since the U.S. Supreme Court waded into the question of pregnancy discrimination versus religious rights in a case involving a Catholic school and its teachers. In the 7-2 ruling, the court held that federal employment discrimination laws aren’t applicable at church-run schools to teachers whose duties include religious instruction. Now, the boundaries are being tested again.

In a case out of New Jersey, an unmarried elementary art teacher in a Roman Catholic school was reportedly fired because she was pregnant and unmarried. The woman sued, alleging gender discrimination and sexual double standards. As her pregnancy discrimination lawyer explains it, the school’s only proof of a moral code violation was the pregnancy itself. For that, only a woman can be punished, not a man.

While the archdiocese in that area says the legal argument is a “must-win fight for the fundamental freedom of religion,” the principal, a nun, testified in depositions that she’d made no effort to ascertain whether other staffers (including men) were engaged in sex outside of marriage. The school, however, pointed to one case in the same archdiocese wherein a male teacher was fired when the woman he was dating became pregnant.

Federal Pregnancy Discrimination Bill Has a Shot at Passing

April 2, 2021 | by Nassiri Law

Pregnant workers have long faced discrimination in the workplace. California has some of the strongest protections for pregnant workers, but our employment discrimination lawyers in L.A. know employees in the rest of the country has not been so fortunate. That could soon change, if a new bill moving through the House is successful.

The bill, called the Pregnant Workers Fairness Act, or PWFA, was first introduced in 2012 – and nearly every House session since. In the meantime, pregnancy discrimination lawsuits across the U.S. have numbered in the thousands – including one that made it to the U.S. Supreme Court.

Now, it seems the latest effort has real promise. When H.R. 1065 was first introduced several months ago, it got 225 sponsors and included representative from both sides of the political aisle, increasing optimism about its prospects.

What Would the PWFA Do?

The main thing the PWFA could do for pregnant workers across the country is to both clarify and strengthen the decades-old Pregnancy Discrimination Act. This law made it unlawful for employers to use pregnancy as a determining factor when deciding who to hire, fire, promote, etc.

The PDA has some great intent and important protections. But as our Los Angeles pregnancy discrimination lawyers know, it doesn’t go far enough for many workers. It was passed as an amendment to the 1964 Civil Rights Act some four decades ago. The original federal law is frankly pretty ambiguous. Critical language is left undefined, and frequently, employee plaintiffs face an almost insurmountable proof burden to establish discrimination. Continue Reading ›