There are several ways to deal with pregnancy disability.

Harassment Based on Pregnancy - California Fair Employment and Housing Act (FEHA)

“[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.

In Fisher v. San Pedro Peninsula Hospital, the court noted that “Plaintiffs' claims for harassment... are founded on the provisions of FEHA and are based exclusively on that statutory scheme since FEHA is not a codification of preexisting common law. Accordingly, we apply the general rule that facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.” Fisher v. San Pedro Penin. Hosp. (1989) 214 Cal.App.3d 590, 604

Courts have analyzed the issue of what constitutes actionable harassment. “To be actionable, the sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 142. “In determining what constitutes ‘sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” Fisher v. San Pedro Penin. Hosp. (1989) 214 Cal.App.3d 590, 610.

Note, before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with the Department of Fair Employment and Housing (DFEH). Wills v. Superior Court (2011) 195 Cal. App. 4th 143, 153.

Failure to Grant Leave - California Family Rights Act (CFRA)

Plaintiff may allege that defendant violated the California Family Rights Act (CFRA) because the employer failed to grant leave and failing to guarantee her return to the same position after her return from leave. Gov. Code, § 12945.2; see also Gov. Code, § 12945(a)(1) (requiring employers to allow employees disabled by pregnancy or childbirth “to take a leave for a reasonable period of time not to exceed four months”); Code of Regulations, Title 2, § 11043(a) (“An employee who exercises her right to take pregnancy disability leave is guaranteed a right to return to the same position....”).

A plaintiff must allege that:

1. the plaintiff was eligible for family care or medical leave;
2. the plaintiff requested leave for the birth of the plaintiff’s child;
3. the plaintiff provided reasonable notice to the defendant of her need for family care or medical leave, including its expected timing and length;
4. the defendant refused to grant the plaintiff’s request for family care or medical leave;
5. the plaintiff was harmed; and
6. the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.

California Civil Jury Instructions (CACI) 2600. To state a claim for violation of the Pregnancy Disability Leave Law (PDL), a plaintiff must allege similar elements. Cal. Gov’t Code § 12945(a)(1).

Discrimination Based on Pregnancy - Gov. Code, § 12940(a)

“It is... unlawful... [f]or an employer, because of the... medical condition... to... discharge the person from employment ....” Gov. Code, § 12940(a); see also Gov. Code, § 12926(q)(1) (“sex” is defined to include “[p]regnancy or medical conditions related to pregnancy”).

The plaintiff can claim that the defendant discriminated based on her pregnancy, in violation of section 12940(a). The plaintiff must show:

1. the defendant was an employer;
2. the plaintiff was the defendant’s employee;
3. the defendant knew the plaintiff had a physical disability that limited major life activity;
4. the plaintiff was able to perform the essential job duties with reasonable accommodation for the plaintiff’s physical disability;
5. the defendant discharged the plaintiff;
6. the plaintiff’s physical disability was a substantial motivating reason for the defendant’s decision to discharge the plaintiff;
7. the plaintiff was harmed; and
8. the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.

CACI 2540.

Failure to Accommodate - Gov. Code, § 12940(m)

The plaintiff can argue that the defendant failed to reasonably accommodate her pregnancy and related conditions pursuant to Government Code, section 12940(m). The FEHA requires an employer to provide reasonable accommodation for an employee's known disability [in this case pregnancy], unless the employer demonstrates that the accommodation would produce “undue hardship ... to its operation.” Gov. Code, § 12940(m); Sanchez v. Swissport (2013) 213 Cal.App.4th 1331, 1337.

The elements of a reasonable accommodation cause of action are:

1. the employee suffered a disability,
2. the employee could perform the essential functions of the job with reasonable accommodation, and
3. the employer failed to reasonably accommodate the employee's disability.

Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.

A plaintiff need not specifically request reasonable accommodation because section 12940(m) does not specifically require that the employee request reasonable accommodation; it requires only that the employer know of the disability. See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950-51.

Failure to Engage in an Interactive Process - Gov. Code, § 12940(n)

Plaintiff can also that Defendant failed to engage in an interactive process as required by Government Code, section 12940(n). The plaintiff must allege that:

1. that the defendant was an employer;
2. that the plaintiff was the defendant’s employee;
3. that the plaintiff had a physical disability that was known to the defendant;
4. that the plaintiff request that the defendant make reasonable accommodation for her physical disability so that she would be able to perform the essential job requirements;
5. that the plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that she would be able to perform the essential job requirements;
6. that the defendant failed to participate in a timely good-faith interactive process with the plaintiff to determine whether reasonable accommodation could be made;
7. that the plaintiff was harmed; and
8. that the defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing the plaintiff’s harm.

CACI 2546.