Gender and Pregnancy Discrimination
The Fair Employment and Housing Act (“FEHA”) outlaws workplace discrimination on account of gender, the perception of gender, i.e., transsexuality, or pregnancy. Proof of gender or pregnancy discrimination may be direct, i.e., employer statements explicitly referring to gender or pregnancy, or indirect and circumstantial, i.e., inferred by the facts and the surrounding circumstances. An employee who cannot produce direct evidence of gender or pregnancy discrimination may nevertheless create an actionable inference of gender or pregnancy discrimination by making out a so-called prima facie case, usually as follows:
- The employee is in the protected class, e.g., he or she is of a particular gender or is transsexual, or she is pregnant.
- The employee was treated adversely in the workplace, e.g., fired, harassed, denied promotion.
- Employees in the same classification who were of a different gender, were not transsexual or who were not pregnant were not treated adversely, or the employee was replaced by someone of a different gender, not transsexual or who was not pregnant.
Gender, pregnancy and transsexual discrimination may also be inferred by statistics. In addition, even if the employer tries to explain the adverse employment decision as being the result of a supposedly “legitimate” business decision,” e.g., the employee was purportedly not meeting job performance standards, an employee may adduce evidence demonstrating that the employer’s so-called “legitimate business reason” was a “pretext'” or a ruse, designed to “mask” the true reason for the adverse employment decision, i.e., gender, pregnancy or transsexual discrimination. Employees can rebut or counter a pretextual, so-called “legitimate business reason,” by showing that (1) the supposed “legitimate business reason” does not make business sense, (2) other employees of different gender, who were transsexual or who were not pregnant in the same situation were not subjected to the same adverse treatment or (3) the employer has given multiple or inconsistent explanations for the adverse employment decision which suggest dishonesty. Evidence of pregnancy discrimination may also include the employer’s failure to reasonably accommodate the employee’s pregnancy, e.g., time-off or lighter duty if recommended by a health care professional.
In addition, the Pregnancy Disability Leave Law (“PDLL”) requires employers allow up to four (4) months of leave for employees disabled by pregnancy or related medical conditions whether or not the employer’s policies provide for leaves for other medical conditions. After birth, the employee may be entitled to an additional 12-weeks of leave under the Family Rights Act (“FRA”), so long as (1) the employer has more than fifty (50) employees within a seventy five mile radius, and (2) the employee worked more than 1250 hours in the 12 months preceding the first day of the requested FRA leave or any pregnancy disability leave; and (3) the employee has more than one year on the job.
Quick action is usually required when an employee suspects he or she may have been subjected to gender, pregnancy or transsexual discrimination because in most cases the employee must file a complaint with the Department of Fair Employment and Housing (“DFEH”) within one year. Early action is also advisable in order to preserve evidence that would be critical in proving a claim, e.g., witness statements, depositions, documentary evidence and personnel records.
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