California employees sometimes assume that pregnancy discrimination laws do not protect them if they work for a very small employer. Employers may make the same assumption. The reason is understandable. California’s Fair Employment and Housing Act (FEHA), which prohibits discrimination based on sex and pregnancy, generally applies to employers that regularly employ five or more employees.
But that does not necessarily mean that an employer with only one, two, three, or four employees can legally fire an employee because she becomes pregnant. A California Court of Appeal decision, Badih v. Myers (1995) 36 Cal.App.4th 1289, illustrates an important exception. Even when FEHA does not apply because the employer is too small, terminating an employee because of her pregnancy may still support a claim for wrongful termination in violation of public policy.
A Common Example: The Pregnant Nanny or Caregiver
Consider a situation that can easily arise in California. A family employs one nanny or caregiver. She has worked for the family for a significant period of time and has performed her job satisfactorily. She tells the family that she is pregnant. The family becomes concerned that she will eventually need time off, that caring for a newborn will interfere with her availability, or that pregnancy will make it more difficult for her to perform the job. Shortly after learning of the pregnancy, the family terminates her and hires someone else. Perhaps one of the parents even says something such as: “This isn’t a good time for you to be pregnant.”
The family may believe California discrimination laws do not apply because they have only one employee. It is true that the nanny may not have a traditional FEHA discrimination claim because the family does not employ five or more people. But that does not necessarily eliminate a wrongful termination claim based on pregnancy discrimination.
The California Case of Badih v. Myers
The facts of Badih v. Myers provide a useful example. Fatmeh Badih worked as a medical assistant for a physician. When she informed the doctor that she was pregnant, she testified that he reacted negatively and told her, among other things, that if he had known she was going to get married and have children, he would not have hired her. He then terminated her employment.
The employer denied firing Badih because she was pregnant and claimed that she had quit. The jury disagreed and specifically found that the employer fired her because of her pregnancy. Normally, that would sound like a straightforward pregnancy discrimination case under FEHA. There was a problem, however: the doctor employed fewer than five people.
Because FEHA generally defines an employer as someone who regularly employs five or more people, the parties agreed that the doctor was not subject to FEHA. The employer therefore argued that he could not be held liable for wrongful termination based on pregnancy discrimination. The California Court of Appeal rejected that argument.
The critical distinction in Badih was the source of California’s public policy against pregnancy discrimination.
Article I, section 8 of the California Constitution provides:
“A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”
The Court of Appeal concluded that pregnancy discrimination is a form of sex discrimination for purposes of this constitutional protection. That mattered because California recognizes a common-law claim for wrongful termination in violation of public policy when an employee is discharged for a reason that violates a fundamental public policy expressed in a constitutional or statutory provision.
Thus, the employee did not have to rely exclusively on FEHA.
The court held that because the California Constitution expresses a fundamental public policy against sex discrimination in employment, and pregnancy discrimination constitutes sex discrimination, Badih could pursue a wrongful termination claim even though her employer was too small to be covered by FEHA. The Court of Appeal therefore affirmed the judgment in her favor.
In the pregnancy context, Badih holds that article I, section 8 of the California Constitution provides that independent source of public policy.
This can be particularly important for employees working in very small workplaces, including:
- Nannies and babysitters employed directly by families;
- Caregivers and household employees;
- Personal assistants;
- Employees of very small professional practices;
- Employees of small family businesses; and
- Employees of other businesses with fewer than five employees.
The size of the employer therefore should not end the analysis.
Timing and Statements About Pregnancy Can Be Important Evidence
As with other discrimination cases, proving why the employer terminated the employee is often the central issue.
Suppose a nanny informs the family on Monday that she is pregnant. She has no significant performance problems and has not been told that her job is in jeopardy. A few days later, the family tells her they no longer need her services.
Evidence that may be particularly important to make a case includes:
- How soon the termination occurred after the employer learned about the pregnancy;
- How the employer responded exactly when told about the pregnancy; and whether there are any witnesses to those communications;
- Text messages, emails, or other communications discussing the pregnancy;
- Whether the employee had recently received positive or negative feedback;
- Whether the employer’s stated reason for termination is consistent with what actually occurred;
- Whether the employee was replaced;
- Whether the employer expressed concerns about maternity leave, childcare, availability, or future family responsibilities; and
- Whether the explanation for the termination changed over time.
Not Every FEHA Protection Automatically Applies to a Small Employer
There is an important limitation. Badih should not be read to mean that every right available under FEHA automatically applies to an employer with fewer than five employees. The legal theory recognized in Badih concerned wrongful termination because of pregnancy and the independent public policy against sex discrimination contained in the California Constitution.