Discrimination Leave of Absence

Unfortunately, sometimes employers dislike when employees take time off for maternity leave or a disability leave. Not only do employees have the right to take a protected leave of absence in California, but they also have a right to be free from discrimination for exercising that right. This webpage discusses pregnancy discrimination and disability discrimination, with the goal of informing people of their rights as employees in California. Discrimination in leave of absence cases is a serious issue, and employees should never get fired because they exercise their right to take a protected leave of absence.

Continue reading to learn about the following:

  • California discrimination laws
  • Types of disability and pregnancy discriminations
  • Things to know about discrimination lawsuits
  • How much does a discrimination lawyer cost?
  • How to get started on a discrimination lawsuit

The information provided here is not to be taken as legal advice, nor will it establish any attorney-client relationship. It should not be treated as a substitute for speaking with a experienced LA wrongful termination lawyer. Determining whether discrimination in a leave of absence case has occurred is extremely difficult.

California LOA Discrimination Laws

Not only do employees have the right to take a protected leave of absence in California, but they also have a right to be free from discrimination for exercising the right to take that leave of absence.

We cover in detail the laws that grant employees the right to take a leave of absence on other pages.

On this page, we address an employee’s right to be free from discrimination in leave of absence situations. The Fair Employment & Housing Act (FEHA) was passed in California to protect its employees against discrimination in the workplace. FEHA prohibits discrimination in several areas that are commonly related to a leave of absence: sex, gender, disability, and medical conditions. There are many others, but these are the ones discussed here.

Types of Discrimination in Leave of Absence Cases

Sex Discrimination – Sex discrimination litigation predominantly focuses on discrimination against women. Sex discriminations include those that relate to pregnancy, childbirth, breastfeeding, and/or related medical conditions. Sex also refers to a person’s gender assigned at birth, gender identity, and gender expression. It is sex discrimination if a potential employer asks a job applicant if she plans on getting pregnant, and then decides not to hire her for this reason. Dickson v. Burke Williams, Inc.

Gender Discrimination – Gender discrimination happens when the discrimination is brought because of the employee’s gender. Just like sex, gender also refers to a person’s gender assigned at birth, gender identity, and gender expression It is discrimination that wouldn’t have happened for any other reason than because you are a man or woman. For instance, comments like “I fired her because she’s PMS-ing” or “I don’t want to hire that feminine guy” are gender discriminating comments. Common gender discrimination cases are when women are not paid the same as men for the same job. Other forms would be denying a woman a job as a construction worker where it’s mostly men working or denying a man a job relating to childcare because the industry is dominated by women. Hunter v. CBS Broadcasting Inc.

Disability Discrimination – a very common area of discrimination in the workplace deals with disabilities. If an employer fires you because of your disability, this is considered disability discrimination and is against California employment law. California discrimination laws require employers to reasonably accommodate an employee’s disabilities and not to use the disability as a reason for firing. Unfortunately, many companies don’t adhere to these laws and frequently violate them.

Medical Condition Discrimination – A medical condition refers to any health impairment related to a diagnosis or history of cancer or any genetic characteristic that causes disease or a disorder in a person. For the full definition, you can read it in Government Code § 12926(i). Medical condition discrimination can be the denial of a promotion because the employee has cancer or getting fired for an obsessive compulsive disorder. Swanson v. Morongo Unified School District

Disability Discrimination – A Closer Look

California has some of the strongest employee protection laws in place because it’s definition is broader, it doesn’t have damage caps, and it protects a wider range of disabilities. Discrimination in leave of absence cases is governed by two important laws, the Americans with Disabilities Act (ADA) and FEHA. One big difference between the federal ADA and California’s FEHA is as follows:

the ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” However, under California law, disability is defined as an impairment that makes performance of a major life activity “difficult.”[1] (emphasis added)

This means that California protects people with a wide variety of diseases, conditions and disorders that makes it hard to work, things that wouldn’t be protected by the federal law.

FEHA defines disability by two categories: mental and physical disabilities. The following are definitions of disability taken from the FEHA website:

Physical Disability

Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of several body systems and limits a major life activity. The body systems listed include the neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine systems. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity, such as working, if it makes the achievement of the major life activity difficult.

Mental Disability

Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity, or having any other mental or psychological disorder or condition that requires special education or related services. An employee who has a record or history of a mental or psychological disorder or condition which is known to the employer, or who is regarded or treated by the employer as having a mental disorder or condition, is also protected.

Things to Know About Discrimination Lawsuits

Discrimination in leave of absence lawsuits are tough because of the need to prove that you have been been discriminated against because you exercised your right to take a leave of absence. Below are some important point facts that you should know about discrimination lawsuits:

  • (For private entities) You need to get a right to sue letter from the Department of Fair Employment & Housing within a year of the discriminating act. If you hire a lawyer, he/she will usually get the right to sue letter for you.
  • (for public entities) The statute of limitations for public entities can vary and it can be as short as six months. Discrimination in leave of absence cases against the government are fairly similar to cases against private or public corporations.
  • You can recover economic, punitive, and emotional distress damages, as well as attorney’s fees in a discrimination lawsuit. Punitive damages are rare in discrimination in leave of absence cases.
  • Based on our experience, the vast majority of discrimination cases settle for less than $50,000. For cases that go to trial, it’s not a guaranteed win but if won, the judgment can be much higher.

Every discrimination in leave of absence case is different and you should speak with an experienced lawyer before deciding to move forward or not.

How Much Does a Discrimination Lawyer Cost?

Employees who hire a lawyer can expect to pay on a contingency fee basis. This is the typical method of payment for lawyers who represent employees. It means that you don’t have to pay the lawyer for his/her time, unless he/she can successfully recover money on your behalf through the case. You and the attorney will agree on a percentage of the settlement or judgement at the beginning, before any work is done. The law office will also cover any related costs on your behalf, then recover those costs from the money recovered in settlement or judgment.

How to Start a Discrimination Lawsuit

We highly recommend that you first hire a lawyer. If you can’t find one you can get started on your own by filing a right-to-sue letter from the EEOC or DFEH. After doing this, it’s a complicated process if you are not familiar with the law and court filings, so the best route would be through working with a discrimination lawyer who is well-versed in this area. If you’ve been discriminated against, then give our leave of absence lawyer a call immediately.


[1] Disability Under the Fair Employment & Housing Act: What you should know about the law