Coalition Petitions California Supreme Court to Review Workplace Pregnancy Discrimination Case

Coalition Petitions California Supreme Court to Review Workplace Pregnancy Discrimination Case
Court of Appeal’s Decision Undermines Workers’ Rights under FEHA
February 14, 2013
Pregnant woman

In an amicus letter filed on February 13, 2013, the Legal Aid Society-Employment Law Center, Equal Rights Advocates, Legal Momentum, and National Women’s Law Center argue that the Court of Appeal’s ruling in Veronese v. Lucasfilm Ltd. misinterprets established law to the detriment of women working during pregnancy.  The letter to the California Supreme Court emphasizes that, regardless of an employer’s claim that refusing to hire a pregnant worker is in the best interest of the pregnancy, it is up to the woman - not the employer - to decide when a pregnancy makes her unable to work.

A jury found that Lucasfilm rescinded an employment offer for Plaintiff Julie Gilman Veronese upon learning she was pregnant, in violation of California’s Fair Employment and Housing Act (FEHA).  Lucasfilm appealed that verdict, and the Court of Appeal reversed it, concluding, among other things, that the trial court should not have instructed the jury that an employer’s concerns about potential hazards to the fetus do not justify pregnancy discrimination.  

The Appeals Court held that, while this instruction was legally accurate, it could have led the jury to believe that it was per se illegal for an employer to have concerns about the health of a pregnant woman or her fetus.  The Court also held the instruction was improper because Lucasfilm did not have a company-wide fetal protection policy.  

The amicus letter, coauthored by LAS-ELC, Equal Rights Advocates, Legal Momentum, and the National Women’s Law Center, argues that review should be granted because: (1) it is not a defense to pregnancy discrimination that the employer was concerned about fetal hazards, regardless of whether there was a blanket policy or an individual employer decision; and (2) an employer may not deny a pregnant worker employment opportunities based on “benign” concerns for the health of the worker or her fetus; instead, it is for the woman to decide, in consultation with her health care provider, whether and when she needs a workplace accommodation or temporary disability leave to ensure a safe and healthy pregnancy. 

“Too many obstacles already exist in terms of women being discriminated against on the job during pregnancy,” said Michelle Caiola, Senior Counsel at Legal Momentum. “The Court of Appeal’s ruling is perilous because it creates an arbitrary reason to remove a pregnant worker from duties or force her onto leave, simply because she is pregnant.”

According to Legal Aid Society-Employment Law Center’s Senior Staff Attorney Sharon Terman, “Pregnancy discrimination persists and has terrible consequences for the health and economic security of women and their families.  The Court of Appeal’s ruling leaves millions of women vulnerable to adverse actions on the job based on an employer’s supposed “concern” for the health of a woman’s pregnancy.”   

"Whether discrimination based on pregnancy manifests itself in a blanket policy or an individual employment decision, the devastating economic impact on working women and their families is the same," said Jennifer Reisch, Legal Director of Equal Rights Advocates. "We urge the Supreme Court to review the Court of Appeal's decision to affirm this longstanding and fundamental principle of our equal employment opportunity laws."