Pregnancy or Career – Can You Have Both?

PregnancyAre you currently pregnant or considering pregnancy? Well the decision to start a family is complex and requires a number of considerations, but pressure from your employer should not be one of them. The law offers specific discriminatory protections for mothers or potential mothers in the workplace. An experienced employment lawyer can help you with issues in the event you feel you are experiencing pregnancy discrimination.

Federal Protections

The Pregnancy Discrimination Act (PDA) prohibits workplace discrimination related to pregnancy. That means that being pregnant cannot influence any decisions regarding hiring, pay, job assignments, training opportunities, layoffs or firing. Additionally, benefits relating to health insurance or leave cannot be determined based on this status.

Physical Limitations

If your pregnancy interferes with your ability to perform duties normally associated with your position, your employer must provide alternate assignments, disability leave, or other leave just as it would for any other temporarily disabled employee. If your pregnancy results in additional health issues, such as preeclampsia, for example, the law requires reasonable accommodations.  These types of medical conditions are covered disabilities under the Americans with Disabilities Ace Amendments Act of 2008.

Reasonable Modifications

Modifications must be based on individual circumstances and needs.  Some common accommodations that might be required include:

  • Eliminating non-essential functions (such as heavy lifting) from the workload for a period of time;
  • Allowing frequent restroom breaks;
  • Modifying daily schedules to accommodate morning sickness;
  • Allowing an employee to be seated when standing might normally be expected.

What is Harassment and Discrimination?

Clearly, harassment, intimidation, and any discrimination surrounding pregnancy or childbirth is unlawful. Any behavior that creates an offensive or hostile work environment due to its frequency or severity, or that results in an unfavorable job action, may be actionable. Refusing to provide reasonable accommodations could also be considered discrimination.

Pregnancy and Maternity Leave

If an employer allows disabled persons to take disability leave with or without pay, the same must be offered for pregnancy-related issues. Pregnancy cannot be singled out with special rules or procedures. In addition, the Family Medical Leave Act (FMLA) of 1993 allows any new parents up to 12 weeks of paid or unpaid leave for the care of a new child, given the employee has worked for a year prior to the requested leave.

Finally, the Fair Labor Standards Act (FLSA) provides that nursing mothers must be afforded the time and private location (not just a bathroom) to express milk. [Read more…]

Disability Accommodations for a Disability That Does Not Require Accommodations?

Disability AccommodationsDisability accommodations – Moore v. Regents of the University of California. Let’s say that an employee approaches his or her manager, and asks for disability accommodations. And, let’s say that the employee does not actually have any conditions that qualify as a disability under California’s Fair Employment and Housing Act (FEHA). In this case, can the employee be protected by FEHA if the employer refuses to consider granting the disability accommodations?

The answer, according to a California appeals court, is yes. In the case of Moore v. Regents of the University of California, the Court of Appeals of California for the Fourth District, Division One, found that an employer’s unwillingness to engage in an interactive process with an employee who requested an accommodation could constitute a violation of FEHA – even if the employee did not have a condition that meets FEHA’s definition of a disability.

Did the University of California Violate an Employee’s Disability Accommodations FEHA Rights?

Deborah Moore worked in the Marketing and Communications Department of the University of California San Diego. After she was diagnosed with idiopathic cardiomyopathy, she informed her employer. She was later demoted, and eventually, her position was eliminated.

Moore filed a complaint asserting that UCSD discriminated against her on the basis of a disability, in violation of FEHA. She alleged, among other claims, that UCSD failed to accommodate her disability. She also alleged that UCSD failed in its duty, under FEHA, to engage in a “timely, good faith, interactive process” with an employee who has requested accommodation for a disability.

The trial court that originally handled Moore’s case dismissed her complaint. It held that Moore did not have a disability that required disability accommodations under FEHA, and thus UCSD did not have an obligation to engage in an interactive process with her.

However, the appeals court disagreed. The court held that it is possible for an employer to violate FEHA by refusing to engage in the interactive process with an employee who claims to require disability accommodation, even if the employee ultimately was not entitled to disability accommodations.

According to the ruling, if an employer regards an employee as having a disability, then the employee is entitled to make a FEHA claim, on the grounds that the employer failed to engage in the interactive process. The Court held that the point of this process is to find appropriate accommodations for employees who have conditions that are considered disabilities under FEHA, or for employees who are merely regarded as disabled by their employers.

The Court held that it would be reasonable for a finder of fact (such as a judge or jury) to conclude that UCSD regarded Moore as disabled. On this basis, the Court ruled that the trial court had erred in granting summary judgment on Moore’s cause of action related to failure to participate in the interactive process. [Read more…]

$1.8 M Settlement for Allegations of “Steering”

steering, lawsuitA “steering” allegations settlement has been reached between G&K Services, a company that manufactures branded uniforms and facility products, and the U.S. Department of Labor regarding allegations of gender discrimination. The settlement involves G&K paying over $1.8 million to affected employees at nine locations – including a facility in Sacramento.

A compliance review by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) found that female employees of G&K were allegedly steered into duties that paid less than the duties that were predominantly assigned to male employees. The term “steering” refers to the practice of directing employees toward less desirable jobs based on their membership in a protected class. (When employers are accused of paying workers lower salaries based on factors such as race or gender, they may be found to have engaged in discriminatory practices even if the workers had substantially different job duties – if the employees with lower paying positions were steered toward them based on protected characteristics.)

According to an OFCCP press release, G&K’s hiring practices involved discrimination based on race as well as gender, with the result that 456 African-American job applicants and 111 Caucasian applicants were denied equal opportunity. The OFCCP also determined that G&K’s practice of steering male applicants toward certain positions resulted in a lower hiring rate for male applicants – with 2,327 male applicants affected.

The Steering Allegations Agreement

G&K denied any wrongdoing, but as part of a conciliation agreement will pay $1,813,555 to employees from the affected classes. G&K also agreed to allow 58 female employees the opportunity to assume positions with higher salaries, and to offer 78 positions to rejected applicants.

G&K also agreed to perform “a detailed assessment of its hiring, placement and compensation practices,” and to look into whether documents such as job postings are discriminatory. The settlement also requires G&K to conduct adverse impact and compensation analyses at the nine facilities in which the OFCCP determined that discriminatory practices were taking place – and to share the results of these analyses with the agency.

This is not the first time in recent years that G&K has been found by the OFCCP to have taken part in steering. In 2013, G&K reached a settlement after being accused of steering female employees into lower paying positions at a facility in Santa Fe Springs, California. In that case, the OFCCP determined that female employees were assigned to “light duty” jobs with lower salaries, while only considering male employees for heavy duty work. The OFCCP also determined that male employees were denied opportunities as a result of only being considered for heavy duty positions. [Read more…]

Does Former USC Coach Sarkisian Have A Discrimination Case

discrimination caseDoes former USC Football Coach Steve Sarkisian have a discrimination case? Steve Sarkisian was fired from his position as head coach of the University of Southern California (USC) football team in October, after incidents during which he allegedly appeared at events intoxicated. Sarkisian has now filed a wrongful termination suit against USC, alleging (among other claims) that the university discriminated against him on account of his alcoholism.

The circumstances of the firing are unclear. Sarkisian claims that he asked athletic director Pat Haden for time off to seek treatment for alcoholism, and in response Haden placed him on indefinite leave. According to Sarkisian’s complaint, he was then “kicked to the curb” less than a day later, when he was notified of his firing via email while he was traveling to a rehabilitation program.

However, USC issued a public statement in response to Sarkisian’s allegations that portrays the matter differently. According to USC, Sarkisian never acknowledged that he had a problem with alcohol and refused help when the university offered it. USC also claims that it provided Sarkisian with written notice that he would lose his job if there were further “incidents.”

Was Sarkisian’s Firing Justified or is a Discrimination Case a Possibility?

The discrimination case deals with some complex issues surrounding discrimination law. Under both the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA), alcoholism is a protected disability. It is illegal under both statutes to discriminate against an employee based on the stigma of alcoholism or based on past alcohol use. However, an employee is not protected when it comes to current alcohol abuse or misbehavior that arises from alcohol abuse.

Sarkisian’s complaint acknowledges that he “appeared” inebriated at a USC fundraising event called Salute to Troy and that he uttered an obscenity at the event. Sarkisian claims that he drank two beers and then took two prescription anxiety medications, and that his behavior stemmed from the mixture of the medication and the alcohol in his system. This event could prove to be crucial to the case. If the finder of fact determines that this constituted Sarkisian being intoxicated at work, then the incident could be seen as a justifiable reason for termination.

However, if the finder of fact determines that Sarkisian was fired for seeking treatment for alcoholism, then his termination could be seen as discriminatory. It is generally considered a violation of the ADA as well as FEHA to fire an employee under such circumstances. [Read more…]

SB 358: Equal Pay for Substantially Similar Work

equal payThe concept of paying men and women equal pay for equal work should be familiar to California employers but under new legislation, wage equality requirements no longer apply only to employees with identical job descriptions. Employers are now required to pay male and female employees equal wages for doing “substantially similar” work.

The legislation in question, California Senate Bill 358, was signed into law on October 6, 2015 by Governor Jerry Brown at the Rosie the Riveter National Historical Park in Richmond. The new legislation amends Section 1197.5 of the California Labor Code.

What Does the equal pay Bill Say?

SB 358 states that an employer may not pay any of its employees at lower wage rates than employees of the opposite sex for work that is substantially similar, when viewed “as a composite of skill, effort, and responsibility and performed under similar working conditions,” unless the employer can demonstrate that:

  • The wage differential is based upon one or more of the following factors: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and/or a bona fide factor other than sex (such as education, training or experience.)
  • Each factor is relied upon reasonably, and
  • The factor or factors relied upon account for the entire wage differential.

The legislation clarifies that if an employer cites a “bona fide factor other than sex,” it must not be based on, or derived from, a sex-based differential in compensation. In addition, the factor must be related to the job in question, and it must be consistent with a business necessity.

Other aspects of the legislation include:

  • The Division of Labor Standards Enforcement, which is in charge of administering and enforcing the legislation, may supervise the wages that are due to employees when a violation takes place.
  • Employers must maintain records of the wages and wage rates, job classifications, and other terms of employment of their employees. The records must be maintained for at least three years.
  • When an employee files a complaint with the Division of Labor Standards Enforcement, the name of the employee will be kept confidential until the Division establishes the validity of the complaint. (There is an exception to this, however, if abridging the employee’s confidentiality prevents the Division from investigating the complaint.) If the employee withdraws the complaint before his or her confidentiality is abridged, then the Division will maintain the employee’s confidentiality.

Your Equal Pay Responsibilities Under the New Law

If you run a business in Sonoma County, Mendocino County or Lake County California, and you have not monitored whether there is a gender gap in your employee’s wages, it is time to start. Consulting an attorney to ensure your wages meet the standards of this legislation may be far less expensive than dealing with a gender discrimination lawsuit. [Read more…]

Target Hiring Discrimination Complaint Resolved – $2.8M Settlement

hiring discrimination complaintTarget hiring discrimination complaint has been resolved by Target agreeing to a $2.8 million dollar settlement deal. The complaint involved several employment assessments used by Target in its hiring practices that the Equal Employment Opportunity Commission (EEOC) found to be discriminatory. One of these assessments, which was performed by psychologists, was determined by the EEOC to be a violation of the Americans with Disabilities Act (ADA).

Neither EEOC nor Target has disclosed exactly what this psychological assessment consisted of. However, the EEOC stated that the test was a “pre-employment medical examination,” which violated a provision of the ADA that prevents employers from subjecting applicants to medical examinations before they have received job offers.

Medical Questions and Examinations – What is Allowed and What is Not

The ADA states that its prohibition against discrimination “shall include medical examinations and inquiries.” It also states that, prior to employment, “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability, or as to the nature or severity of such disability.”

It should be noted that the ADA also has a provision stating that a covered entity may make pre-employment inquiries into an applicant’s ability to perform job-related functions. The EEOC’s finding of discrimination in this case suggests that a psychologist’s assessment of a prospective employee’s response to questioning is not considered an acceptable inquiry into his or her ability to perform job-related functions.

An employer may require a medical examination after a job offer has been made, and it can even make the offer conditional on the results of the examination. However, this is only possible if:

  • All entering employees are subjected to such an examination, regardless of disability
  • The results of such examination are only used in accordance with the ADA
  • Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and is treated as a confidential medical record (There are several exceptions to this confidentiality, as there are some specific circumstances in which supervisors, managers, first aid and safety personnel, and government officials can be given access to information about employees’ health.)

Acceptable Questions

The EEOC has enforcement guidelines on pre-employment disability-related questions and medical examinations, and these guidelines specify certain types of questions than an employer is allowed to ask an applicant prior to a job offer. These include:

  • Questions about an applicant’s ability to perform specific job functions – such as stating the physical requirements of the job, and asking if the applicant can satisfy these requirements
  • Questions about an applicant’s non-medical qualifications
  • Questions asking an applicant to describe or demonstrate how he or she would perform job tasks

[Read more…]

How to File a California Fair Employment and Housing Act Discrimination Claim

 fair employment and housing act discriminationHow can I file a California Fair Employment and Housing Act Discrimination Claim? If you work in the state of California and you believe that you have been the victim of employment discrimination, you do not have the immediate option of filing a lawsuit against your employer. You must first pursue a claim on the state level by filing a claim with the California Department of Fair Employment and Housing, also known as the DFEH, or the federal level by filing a claim with the Equal Employment Opportunity Commission, also known as the EEOC.

If you choose to file a complaint with the DFEH regarding a matter that falls under the jurisdiction of the EEOC, then your complaint will also be filed with the EEOC automatically.

Filing a Discrimination Claim with the DFEH

If you choose to pursue a claim on the state level, alleging a violation of California’s Fair Employment and Housing Act (FEHA), you should be aware of the steps involved in the complaint process.

The Interview

When you contact the DFEH, they will schedule a time to interview you about your case. The DFEH provides a written questionnaire and they ask that complainants fill it out and send it in prior to their interviews.

Filing the Complaint

After the interview is complete the consultant who conducted the interview will draft a formal complaint that may or may not be accepted for investigation. The respondent (that is, the employer you have filed a complaint against) will be required to answer the complaint.

The respondent will be given the opportunity to resolve the complaint voluntarily, and the DFEH will attempt to facilitate a voluntary settlement. If a respondent makes an offer that the DFEH feels is reasonable and the complainant rejects it, the DFEH may choose to take no further action on their complaint.

The Investigation

If your complaint has been accepted for investigation, the DFEH is required to perform the investigation in a standard, timely manner. If the investigation does not show that the respondent violated the law, then the case will be closed. If the investigation shows that the respondent violated the law, then the DFEH may issue an accusation of discrimination.


If the investigation shows that there was a legal violation, there will be formal conciliation conferences. At a conciliation conference, the DFEH will present its conclusion that the respondent violated the law and there will be an attempt to reach a settlement between the parties. If there is no settlement, then the complaint may reach the litigation stage.


The DFEH may choose to prosecute the respondent. If this occurs, the respondent may choose to either have the case publicly litigated before the Fair Employment and Housing Commission or moved to civil court.


When a complainant is successful in litigation, there are a wide array of remedies available to him or her, including back pay, emotional distress damages, and reinstatement to his or her job. [Read more…]


The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.