Reproductive Health Decisionmaking Discrimination: Employer Defense
Since January 1, 2023, California’s Fair Employment and Housing Act has listed “reproductive health decisionmaking” among the characteristics an employer can’t base a hiring, firing, or pay decision on. Government Code section 12940(p) also makes it unlawful to require “the disclosure of information relating to an applicant’s or employee’s reproductive health decisionmaking” as a condition of a job or benefit. For employers, the exposure usually starts with a manager’s question or reaction, and the defense rests on what the decision-maker knew.
What did SB 523 add to FEHA?
A new protected category and a new disclosure rule.
Senate Bill 523, the Contraceptive Equity Act of 2022, was approved by the Governor on September 27, 2022, as Chapter 630 of the Statutes of 2022. Most of the bill deals with health plan coverage for contraception. Its employment provisions amended the Fair Employment and Housing Act and took effect on January 1, 2023.
The bill made two changes that matter in employment litigation. First, it added reproductive health decisionmaking to the list of protected characteristics in section 12940(a), the core discrimination ban. The category now also appears in the harassment ban in section 12940(j)(1) and the inquiry and advertising ban in section 12940(d). Second, it added subdivision (p), the ban on requiring disclosure. The Legislative Counsel’s Digest says the bill “would revise the FEHA to include protection for reproductive health decisionmaking, as defined, with respect to the opportunity to seek, obtain, and hold employment without discrimination.”
How does the statute define reproductive health decisionmaking?
A decision about a drug, device, product, or medical service for reproductive health, and the statute says that list isn’t exhaustive.
Government Code section 12926(y) provides that the term “includes, but is not limited to, a decision to use or access a particular drug, device, product, or medical service for reproductive health.” The definition doesn’t list specific procedures. Its text is broad enough that employers should assume it reaches decisions about contraception, fertility treatment and sterilization, whether the employee is a man or a woman.
The same subdivision adds a sentence that shapes how these claims are pleaded. It says the new provisions “shall not be construed to mean that subdivision (r) of this section and other provisions in this part related to ‘sex’ do not include reproductive health decisionmaking.” In practice, that means a plaintiff can allege the same facts as both reproductive health decisionmaking discrimination and sex discrimination. The employer has to defend both theories, and an argument that defeats one won’t automatically defeat the other.
Can a manager ask why an employee needs time off?
A manager can ask what the governing leave law permits. The employer can’t require reproductive health details as a condition of employment or a benefit.
The text of section 12940(p) reaches disclosure required “as a condition of employment, continued employment, or a benefit of employment.” That language covers more than hiring. A leave approval, a schedule change, or eligibility for a benefit can each be a benefit of employment. A supervisor who says an employee won’t get the day off without explaining the appointment has created the kind of evidence this subdivision was written for.
The statute bars required disclosure. It doesn’t make an employee’s voluntary statement unlawful to hear, and it doesn’t prevent an employer from administering leave under the statutes that govern it. The safer course is to route every leave and accommodation request through HR, use forms that ask only what the applicable leave law allows, and train managers not to probe. A manager who hears about an appointment should treat the information as confidential and pass the request along, without comment.
Section 12940(d) adds a hiring-stage risk. It bars any “nonjob-related inquiry” of an applicant that expresses a limitation or discrimination as to a protected characteristic, which now includes reproductive health decisionmaking. Interview questions about family planning were risky before 2023. Reproductive health decisionmaking is now on the statute’s list as well.
What did Paleny v. Fireplace Products decide?
That the new category didn’t apply to conduct before 2023, and that an elective procedure didn’t fit the older pregnancy protections on the facts presented.
In Paleny v. Fireplace Products U.S., Inc., a published 2024 decision of the Third District Court of Appeal, an administrative assistant sued for harassment and discrimination after telling a supervisor about egg retrieval procedures for donation and for freezing. The employment ended in February 2019. The trial court granted summary judgment for the employer, and the Court of Appeal affirmed.
The court held that on the facts presented, the procedure wasn’t a pregnancy-related medical condition. It explained that the plaintiff “was undergoing an elective medical procedure but, without an underlying medical condition related to pregnancy, appellant does not have a protected characteristic under the FEHA.” The court expressly declined to decide how far FEHA protects infertility or in vitro fertilization treatment.
The plaintiff also relied on SB 523. The court noted that “the amendments to section 12940 occurred long after both the conduct she complains of in this case and the trial court’s summary judgment ruling,” and it found the retroactivity argument forfeited because it first appeared in the reply brief. Because the court found no protected characteristic, the dependent claims, including retaliation and wrongful termination, fell with the discrimination claims.
Employers should read Paleny for what it is. It’s a strong decision for conduct before 2023 and a reminder that timing matters. It doesn’t decide a case arising after January 1, 2023, where the plaintiff can plead a decision “to use or access a particular . . . medical service for reproductive health” under section 12926(y) directly. A company defending a post-2023 claim on similar facts should expect the plaintiff to rely on the new category, and should build its defense around causation and the real reason for the decision.
How do employers defend these claims?
The same way they defend other FEHA discrimination claims, with extra attention to knowledge and comments.
| Claim theory | Statute | What the plaintiff has to connect | Where the defense usually sits |
|---|---|---|---|
| Discrimination | Gov. Code 12940(a) | The adverse action to a reproductive health decision | Decision-maker didn’t know, or a documented reason predates the disclosure |
| Sex discrimination on the same facts | Gov. Code 12926(r), (y); 12940(a) | The decision to sex, including reproductive health decisionmaking | Same causation evidence, plus comparators treated the same way |
| Required disclosure | Gov. Code 12940(p) | A requirement to disclose tied to a job or benefit | Forms and practices that don’t ask, plus manager training records |
| Harassment | Gov. Code 12940(j)(1) | Conduct because of the decision that is severe or pervasive | Prompt investigation and corrective action after a complaint |
| Failure to prevent | Gov. Code 12940(k) | An underlying violation plus missing preventive steps | Policies and training, plus a working complaint process |
| Timing of the conduct | SB 523, effective Jan. 1, 2023 | Conduct after the effective date | For earlier conduct, Paleny’s analysis of the pre-2023 law |
Knowledge is often the most important fact. An employee can’t be fired because of a decision the decision-maker never heard about. When a direct supervisor knew but a separate manager made the call, the case depends on whether the supervisor influenced the outcome, the theory the firm covered in its post on cat’s paw liability.
Comments are the other recurring problem. In Paleny, the complaint alleged that the supervisor disapproved of the procedures and became angry over time off requests. Remarks like that are evidence a jury hears, even when they come from someone outside the final decision, and California courts don’t set them aside as stray remarks. A documented, consistent reason for the employment decision, written before any dispute, is what gives an employer room to argue those remarks didn’t drive the result.
Steps to take after a reproductive health discrimination complaint
- Preserve the employee’s leave requests and approvals, schedules, emails and texts with supervisors, performance records, and the handbook and leave forms in effect, under a litigation hold once a claim arrives.
- Calendar the response date on the CRD complaint, demand, or summons, and check for an arbitration agreement and an EPLI policy with notice requirements.
- Identify who knew about the employee’s medical appointments or reproductive health decisions and when, and stop any further action against the employee that could look like retaliation.
- Pull the documents the defense depends on: the reason for the decision as recorded at the time, any comments the employee attributes to managers, and the forms that collected leave information.
- Talk to a lawyer before responding, contacting the employee or their lawyer, or offering anything to settle.
These cases often turn on a handful of conversations, which is typical of California workplace claims defense, and the timing of who knew what usually matters most.
FAQ
Does this protection cover male employees?
Yes. Section 12926(y) protects a decision “to use or access a particular drug, device, product, or medical service for reproductive health,” without limiting it to one sex. A male employee’s vasectomy or fertility treatment fits the text as easily as a female employee’s contraception. Employers should apply the same leave and confidentiality practices to every employee, and train managers that questions or comments about these decisions create risk regardless of who’s involved.
Does the protection apply to conduct before January 1, 2023?
The new category took effect on January 1, 2023. In Paleny, the court noted the amendments came long after the employer’s conduct and found the plaintiff’s retroactivity argument forfeited. For older conduct, a plaintiff has to fit the facts within the pre-2023 protections, such as sex, pregnancy, or disability. Paleny held an elective procedure didn’t qualify, though the court didn’t decide the broader question of infertility treatment.
Can an employer require a doctor’s note for time off?
The statute bars requiring disclosure of information relating to reproductive health decisionmaking as a condition of employment or a benefit. Whatever certification the governing leave law allows should be requested in the form that law permits, without asking for the procedure, the medication, or the reason. Employers should review leave forms so they don’t invite more detail than needed, and keep any medical information in a confidential file separate from the personnel file.
Is a manager’s comment about an employee’s family planning enough for a lawsuit?
A comment alone rarely wins a case, but it can keep one alive. California courts weigh remarks with all the other evidence, and the speaker, the timing, and the context all matter. A remark from someone who influenced a termination shortly before it happened carries real weight. An employer’s best answer is a documented reason for the decision and a record of prompt action on any complaint.
If an employee claims discrimination over a reproductive health decision
If your company has received a CRD complaint or lawsuit alleging that an employee was treated differently after a reproductive health decision or a related time off request, the timing of the decision-maker’s knowledge usually decides how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including discrimination claims involving reproductive health decisionmaking. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
Government Code sections 12926 and 12940; Senate Bill 523 (Stats. 2022, ch. 630); Paleny v. Fireplace Products U.S., Inc. (2024).
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.