Chapter Three. Gender-based Discrimination: Stereotypes and Pregnancy

I. Introduction

Although sexual harassment in the workplace can be considered a form of gender discrimination, in this chapter we refer to gender discrimination as an offense distinct from quid pro quo sexual harassment and hostile work environment harassment. As used here, gender discrimination refers to discrimination by management in personnel decisions based on an employee’s sex. Some cases involve women being discriminated against in the workplace in regard to salary or advancement in comparison to men. One Case In Point below talks about imposing stereotypes about how a woman should look in the workplace. This chapter also addresses discrimination directed to women with children or pregnant women.

This chapter discusses the federal Family Leave Act, the California Pregnancy Disability Leave Statute, and the California Family Rights Act. These statutes entitle pregnant women, employees with other disabilities, and employees with family members who need care, to the right to be granted leave from work. Employers can be held liable for violating the rights of employees for leave under these statutes.

II. What is Gender Discrimination?

Gender discrimination occurs when an employer discriminates in hiring or in treatment of employees based on their sex, or in California under FEHA based on their sexual orientation. Under FEHA, at Government Code Section 12926(p), “Sex” includes, but is not limited to, pregnancy, childbirth, medical conditions related to pregnancy or childbirth” and gender. “Gender” encompasses a person’s gender identity and gender-related appearance and behavior.

The following Cases In Point give factual examples of where gender-based stereotypes were used to make employment decisions, resulting in successful discrimination lawsuits on the part of the plaintiffs.

CASE IN POINT: Acting “Like a Lady”

In the 1989 United States Supreme Court case of Price Waterhouse v. Hopkins, an employer was found to have violated Title VII when it delayed a female employee’s promotion based in part on comments by supervisors that she was “macho,” that she should “dress more femininely, wear make-up, have her hair styled, and wear jewelry,” and that she should “take a course in charm school.” The court found that the plaintiff’s sex was a motivating role in an employment decision, and therefore, her employer was found liable.

CASE IN POINT: Women with Children

Employers sometimes expect women to have certain responsibilities, such as caring for children. In Phillips v. Marietta Corp., an employer did not hire women with preschool-age children, but did hire men with preschool-age children. Even though the majority of the employees were women, there was still discrimination. While the employer was entitled to his opinion that women with young children should not be working, it was unlawful for him to let this opinion affect his employment decisions. As soon as his beliefs affected his hiring decisions, he violated laws against sex discrimination.

A. Gender Stereotypes: Disparate Treatment

The California FEHA and the United States Title VII prohibit discrimination based on the sex of an employee. While employers are allowed to hold their own views and beliefs on gender and society, it is illegal to make employment decisions based on stereotypes regarding the employee’s sex. Discriminating against an employee and treating that employee differently because of their sex or gender is also referred to as disparate treatment. Unlike claims for sexual harassment, where only one employee is required for suit against the employer, under FEHA, an employer can only be sued for discrimination if the employer regularly employs at least five people. For violations under Title VII, 15 employees are required for a lawsuit against the employer.

1. Proving Disparate Treatment: The Prima Facie Case

In the case of Davis v. Team Electric Co., the plaintiff, Christie Davis sued for disparate treatment claiming that she was discriminated against and treated differently by her employer because of her sex. In order to prevail on this cause of action, the plaintiff must establish a prima facie case. A “prima facie case” means that a plaintiff has shown all of the necessary elements of his or her cause of action. The Davis court explained that in order to establish a prima facie case of disparate treatment, Christie must show:
(1) she belongs to a protected class; (2) she was qualified for her position; (3) she was subject to an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably.

Disparate treatment claims are subject to burden shifting originally described by the Unites States Supreme Court in McDonnell Douglas Corp. v. Green. The Davis Court explains the McDonnell Douglas analysis as follows:

The analysis has three steps. The employee must first establish a prima facie case of discrimination. If he does, the employer must articulate a legitimate, nondiscriminatory reason for the challenged action. Finally, if the employer satisfies this burden, the employee must show that the “reason is pretexual ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is untrustworthy of credence.’”

The McDonnell Douglas analysis only applies if there is no direct evidence of the defendant’s discriminatory intent. The analysis is used solely as a burden-shifting tool, and is not given to the jury to decide. Instead, the McDonnell Douglas analysis is used during preliminary stages of a lawsuit, such as during a motion for summary judgment.

A motion for summary judgment is made before a case goes to trial. A judge will render a summary judgment prior to a verdict if he or she finds that no material issue of fact exists and therefore, that one party is entitled to a judgment as a matter of law. It is at this stage in a disparate treatment case that the court will use the McDonnell Douglas test in making a decision according to law as to whether there is any triable issue in the case, and therefore determining if it should go on to trial.

The Davis court, quoting McGinest v. GTE Serv. Corp., stated:
In evaluating motions for summary judgment in the context of employment discrimination, we have emphasized the importance of zealously guarding an employee’s right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.
After a judge declines to grant summary judgment, the case must go to trial, and the McDonnell Douglas analysis is no longer applicable.

While the McDonnell Douglas analysis is used by both federal and California courts, cases that are heard directly by the Fair Employment and Housing Commission (FEHC) do not use the McDonnell Douglas analysis. Instead, with the FEHC, discrimination is established if the plaintiff shows by a preponderance of the evidence that there is a causal connection between the plaintiff’s protected status and an adverse employment action. This FEHC test is not applicable in federal or California courts.

In Nesbit v. Pepsico, the plaintiffs tried to rely on the DFEH test, but the Nesbit court ruled that the DFEH test is only applicable in cases before the FEHC. The Nesbit court explains:
the Commission abandoned the McDonnell Douglas framework only for cases brought before the Commission. The Commission reasoned primarily that because, unlike a court, the Commission has before it all of the evidence, there is no reason to require shifting burdens of production. Thus, the use of a prima facie framework to weed out meritless cases is unnecessary because all of the evidence has already been presented. The Commission’s reasoning is limited to cases before the state agency, not the courts.

2. Mixed Motives

Often in discrimination cases, the employer will have mixed motives for its employment decision where both legitimate and illegitimate factors have contributed to the decision. For example, if a supervisor fires a construction worker because she is always late to work, and also because she is a woman, the decision to fire the woman had mixed motives.

In a mixed motives case, the plaintiff has the initial burden of proving that the discrimination was a “motivating factor in the adverse employment action, even though other factors may have been involved.” Once the plaintiff meets this initial burden, then the burden shifts to the employer and the employer must “demonstrate that it would have taken the same action even if it had not taken the prohibited characteristic into account.” Once the case goes to trial, the trier of fact will decide whether the employer’s discriminatory intent caused the employment decision.

3. Same Actor Evidence

Where the same actor is responsible for both the hiring and firing of a plaintiff suing for discrimination, and both actions occurred within a short period of time, an inference arises that there was no discriminatory motive. For example if Mr. Smith, a personnel director at an accounting firm, hires Ms. Jones, a female associate, and then fires her two months later, and Ms. Jones claims that she was discriminated against and fired because she is a woman, then the defense will try to use “same actor” evidence. The defense will argue that if Mr. Smith didn’t want women in the workplace, he would not have hired a woman for the position in the first place.

However, same actor evidence does not carry with it any special weight or create any presumptions in favor of the employer. In Harvey v. Sybase, Inc., the California Court of Appeal for the First District said, “Evidence that the same actor conferred an employment benefit on an employee before discharging that employee is simply evidence and should be treated like any other piece of proof.”

III. Discrimination Based on Sexual Orientation

Under FEHA, at Government Code, Section 12940 (a), discrimination on the basis of sexual orientation is prohibited in California. This means that it is unlawful for you to be harassed because of your homosexuality, heterosexuality, or bisexuality. It is also unlawful for you to be harassed at work because of your perceived sexual orientation or because of the sexual orientation of the people you affiliate with.

Conversely, under Title VII and the EEOC, discrimination on the basis of sexual orientation is not prohibited, as sexual orientation has not been added to the federal list of suspect classes.

Under the California law, the Supreme Court of California has confirmed that employers may not discriminate against employees based on sexual orientation. (See the discussion of Jones v. The Lodge at Torrey Pines Partnership, in Chapter Five, Section IV (D).)

IV. Discrimination Based on Pregnancy or Potential Pregnancy

Discrimination based on pregnancy, childbirth, or related medical conditions, is prohibited by both FEHA and Title VII.

FEHA, at California Government Code, Section 12945 (b) (2) requires that if your employer has a policy or practice that requires that temporarily disabled employees be transferred to less strenuous or hazardous positions while they are disabled, then the employer may not refuse to transfer you while you are pregnant, if you ask to be transferred according to this practice.

Also, according to guidelines published by the FEHA, it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant.

So-called “maternal profiling” in which employers discriminate against women who have children, or women who will have children in the future, violates both FEHA and Title VII.

CASE IN POINT: Discrimination Based on Potential for
Future Pregnancy is Unlawful

It is unlawful to discriminate based on the potential for a woman to become pregnant. In Auto Workers v. Johnson Controls, a manufacturing company would not allow women to work certain jobs based on a “fetal protection policy” because if they became pregnant there could be harm to their fetus. The Supreme Court of the United States ruled that such a policy was illegal discrimination.

CASE IN POINT: Termination For In Vitro Fertilization Sex Discrimination According To Seventh Circuit

In the 2008 Seventh Circuit federal court case of Hall v. Nalco Company, the plaintiff alleged sex-discrimination based on her claim that she was terminated from her job for missing work for fertility treatments. The court found that although infertility affects both men and women, only women undergo in vitro fertilization, and that such fertility treatment is based on a woman’s childbearing capacity. Therefore adverse employment actions based on a woman undergoing in vitro fertilization is unlawful under Title VII. This was a case of first impression at the federal appellate court level, and although California courts are not bound by this decision, federal and state courts in California may very well follow this case.
CASE IN POINT: Facts Found to Constitute Pregnancy

In Carr v. Barnabey’s Hotel Corp., the plaintiff, Cathy, worked as senior food and beverage supervisor at a hotel. When Cathy was seven months pregnant she got a new supervisor, Defendant Whitty. On Whitty’s third day of employment he told Cathy that “this was no place for a pregnant woman to be.” Whitty also told other employees that pregnant women should not be working in the hotel or restaurant business and that “it didn’t look good” to have a pregnant woman at the front desk, where Cathy worked, and made derogatory comments about women being strong-willed and outspoken. Whitty told Cathy that the employees were stupid and lazy due to her incompetence, made derogatory comments about Cathy to other employees, and interfered with her work. Whitty eventually fired Cathy. On the day she was fired, Whitty told her that “no woman talks to me this way” and that was why he was firing her. The court found that these facts were sufficient for a jury finding of discrimination.

V. Pregnancy Leave

There are three statutes which give women in California the right to a certain amount of pregnancy leave. These three bodies of law are the federal Family Medical Leave Act of 1993 (FMLA), California Pregnancy Disability Leave (PDL), and the California Family Rights Act (CFRA). The size of your place of employment (i.e., number of employees) affects which laws apply to your employment.

California also offers Paid Family Leave insurance, which is unemployment compensation disability insurance provided by California’s State Disability Insurance (SDI) program and funded by employee payroll deductions. Paid Family Leave benefits are available to workers who suffer a wage loss due to time taken off work to provide care for a seriously ill family member or to bond with a new child.
California workers may receive up to six weeks of partial pay Paid Family Leave benefits each year. Employees who pay into California’s SDI program are eligible for Paid Family Leave benefits regardless of the size of their employer.

A. Family Medical Leave Act of 1993:

The Family Medical Leave Act (FMLA) allows for up to four months of leave from work, and it applies equally to men and women. There are four reasons that you may qualify for leave under the FMLA:
(1) To care for a child born within the last year;
(2) To care for a child that has been adopted or placed in foster care with you during the past year;
(3) To care for a child, spouse, or parent with a serious health condition; or
(4) For a serious health condition that makes you unable to perform the functions of your position.

1. Eligibility

According to the FMLA, Title 1, Section 101, in order to be an eligible employee, the employee must have been employed for at least 12 months by the employer, and must have worked at least 1,250 hours of service during the 12-month period. Also in order for the employee to be eligible for FMLA leave, the employer must have at least 50 employees within a 75-mile radius of the worksite of the employee requesting the leave.

2. Restoration of Position

The FMLA states that, in general, any eligible employee who takes FMLA leave, on return from such leave shall be entitled to

be restored by the employer to the position of employment held by the employee when the leave commenced; or… to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment…[and the taking of FMLA leave] shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.
However, there is an exemption concerning certain highly compensated employees. An employer may deny restoration if “such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer; … the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and … in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.”
This exemption affects salaried eligible employees who are “among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed.”

B. California Pregnancy Disability Leave:

Women in California who are disabled by their pregnancy are entitled to up to four months of protected leave under California Pregnancy Disability Leave (PDL). This leave runs concurrently with FMLA. California Code of Regulations, Section 7291.7 states:

All employers must provide a leave of up to four months, as needed, for the period(s) of time a woman is actually disabled by pregnancy even if an employer has a policy or practice which provides less than four months of leave for other similarly situated temporarily disabled employees….

If an employer has a more generous leave policy for other temporary disabilities than is required under Section 7291.7… the employer must provide such leave to employees temporarily disabled by pregnancy.

1. Eligibility

If your employer has a minimum of five employees, you are eligible for up to four months of job-protected leave for pregnancy-related disability. A “four month leave” means the number of days the employee would normally work within four months. There is no length of service requirement before an employee disabled by pregnancy is entitled to a pregnancy disability leave.

2. Disability Requirement

PDL is available only when a woman is actually disabled. This includes leave needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or any related medical condition. According to California Code of Regulations, Section 7291.2, a woman is “disabled by pregnancy” if:

in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons…. A woman is also considered to be “disabled by pregnancy” if she is suffering from severe “morning sickness” or needs to take time off for prenatal care.

The employer is entitled to request medical certification from the employee requesting leave if the employer requires certification of other similarly suited employees. According to California Code of Regulations, Section 7291.2 “certification” means:
a written communication from the health care provider of the employee that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or to less strenuous or hazardous duties.

3. Job Transfer

Under PDL, and according to California Code of Regulations, Section 7291.6, it is unlawful for an employer to deny the request of an employee affected by pregnancy to transfer provided that:

(1) The employee’s request is based on the certification of her health care provider that a transfer is medically advisable; and

(2) Such transfer can be reasonably accommodated by the employer. No employer is required to create additional employment that the employer would not otherwise have created, discharge another employee, violate the terms of a collective bargaining agreement, transfer another employee with more seniority, or promote or transfer any employee who is not qualified to perform a new job.

The burden is on the employer to prove by a preponderance of the evidence that such a transfer cannot be reasonably accommodated.

Under PDL, if it is medically advisable for an employee to take intermittent leave or leave on a reduced work schedule, the employer may require the employee to transfer temporarily to an available alternate position. However, this alternate position must have the same pay and benefits, the employee must be qualified for the alternate position, and it must better accommodate recurring periods of leave than the employee’s regular position.

4. Reinstatement

When the employee’s health care provider certifies that the transfer or leave is no longer needed, the employer must reinstate the employee to her same or comparable position.

5. Denial of Leave

It is an unlawful employment practice for an employer to refuse to grant a pregnancy disability leave to an eligible employee. In order to prove that an employer unlawfully denied this leave, California Code of Regulations, Section 7291.8 states the burden of proof as follows:

Denial of a request for pregnancy disability leave is established if the Department or the employee proves, by a preponderance of the evidence, the following elements.
(1) The employer was an employer under the FEHA with five or more employees.
(2) The employee was disabled by pregnancy.
(3) The request was reasonable.
(4) The employer denied the request for pregnancy disability leave….

A request to take a pregnancy disability leave is “reasonable” if it complies with any applicable notice requirements, and if it is accompanied, where required, by a certification.

C. California Family Rights Act:

The California Family Rights Act (CFRA) offers protected leave to care for a newly born or adopted child.

1. Eligibility

The California Supreme Court in Loniki v. Sutter Health Central, summarized the CFRA as follows:
The CFRA applies to companies with 50 or more employees; it allows an employee up to 12 weeks of unpaid “family care and medical leave” if the employee has worked for the company for more than a year, and has at least 1,250 hours of service during the previous year. Grounds for the leave are family needs such as birth or adoption of a child, serious illness of a family member, or…when “an employee’s own serious health condition… makes the employee unable to perform functions of the position of that employee.”

2. Relationship Between CFRA and PDL

The right to take pregnancy leave under California Pregnancy Leave, discussed above, is “separate and distinct from the right to take a CFRA leave.” CFRA leave begins after California Pregnancy Disability Leave ends. According to California Code of Regulations, Section 7291.13:

At the end of the employee’s period(s) of pregnancy disability, or at the end of four months pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by her pregnancy before taking CFRA leave for reason of the birth of her child.

Therefore, the maximum possible combined statutory leave entitlement under all three applicable bodies of law is four months plus 12 workweeks. In order to reach this maximum entitlement, the employee must be disabled by pregnancy for four months and then request and be eligible for a 12 week CFRA leave for reason of the birth of the child.

CASE IN POINT: Leave Policy May Differentiate Between Work-Related and Non-Work-Related Disabilities, Such as Pregnancy

A California Court of Appeal, in Spaziano v. Lucky Stores, Inc., ruled that a collective bargaining agreement that gives a one-year leave of absence to employees who are disabled by occupational injury, and a six-month leave of absence to employees who are disabled by non-occupational injury including pregnancy, does not discriminate against pregnant employees and does not violate FEHA.

The Spaziano court explained their rationale as follows:
The FEHA policy towards reinstating employees after a pregnancy disability leave is summarized as follows: “If an employee disabled by pregnancy has taken a pregnancy disability leave for longer than four months, an employer must treat the employee the same regarding reinstatement rights as it treats any other similarly situated employee who has taken a similar length of disability leave. For example, if the employer has a policy which allows reinstatement to other temporarily disabled employees who are disabled for six months, the employer must also allow reinstatement to a woman disabled by pregnancy for six months.”…

Lucky’s policy … does not run afoul of the above regulation or FEHA. Lucky does not provide workers who are disabled due solely to their pregnancy with less leave than workers who are disabled due to other non-industrial causes. Though it does not give them as much disability leave as employees who are injured on the job, this distinction is not based on sex or pregnancy. Spaziano was limited to six months of leave not because she was pregnant, but because her disability was not work related.
The common goal of Title VII and FEHA is to end discrimination against pregnant workers…. A leave policy such as Lucky’s, which differentiates between work-related disabilities and those which occur off the job, does not discriminate against pregnant employees. Rather, it establishes a neutral rule that incidentally affects pregnant employees as part of a larger group.

VI. Conclusion

Gender discrimination often takes place in the form of denying leave to workers who are entitled to it. Pregnant women are entitled to leave under different statutes and an employer who violates the statutory rights of employees to take leave from work for legitimate reasons under the statute is in violation of the law and liable for damages.

The legal term for unlawful gender discrimination based on stereotypes is called disparate treatment. When an employer discriminates against an employee based on the employee’s gender, such as giving to one sex preference in hiring, salary advancements, or promotions, that is discrimination based on disparate treatment.

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