Even After Pregnancy Disability Leave Is Exhausted, Terminated Employee May State A Cause Of Action Under The Fair Employment And Housing Act

by | May 28, 2013

Even After Pregnancy Disability Leave Is Exhausted, Terminated Employee May State A Cause Of Action Under The Fair Employment And Housing Act

An employee who was fired after she exhausted all of her leave under the Pregnancy Disability Leave Law (“PDLL”) brought a lawsuit against her former employer for discrimination and retaliation under the California Fair Employment and Housing Act (“FEHA”).  The court of appeal held that an employee who has exhausted all of her leave under PDLL may nevertheless state a cause of action under FEHA.  (Sanchez v. Swissport, Inc. (— Cal.Rptr.3d —-, Cal.App. 2 Dist., February 21, 2013).

Facts

Ana G. Fuentes Sanchez (“Sanchez”) was employed by Swissport, Inc. (“Swissport”), as a cleaning agent until her employment was terminated on July 14, 2009.  Sanchez was diagnosed in late February 2009 with a high-risk pregnancy that required bed rest.  Swissport granted Sanchez a leave of absence.  Sanchez claims “Swissport had actual knowledge that she was anticipated to deliver her baby on or about October 19, 2009,” and that “she needed a leave of absence lasting until she gave birth.”  She claims she would have returned to work soon after the delivery of her baby “with the need for only minimal accommodations, if any.”

Sanchez alleges Swissport afforded her just over 19 weeks of leave, consisting of her accrued vacation time in addition to the time allotted by the California Family Rights Act (“CFRA”) and the PDLL, before it abruptly terminated her employment.  Sanchez claims Swissport fired her “because of her pregnancy, her pregnancy-related disability and/or her requests for accommodations.”  She asserted Swissport never contacted her “to engage her in a timely, good faith interactive process in order to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed.”  She claims that “the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship upon [Swissport], nor would said accommodations have adversely impacted, in any way, the operation of [its] business.”

Sanchez filed a lawsuit against Swissport alleging causes of action for discrimination based on sex, pregnancy, and pregnancy-related disability, failure to prevent discrimination, failure to accommodate or engage in a good faith interactive process, and retaliation.  Swissport asked the trial court to dismiss all of Sanchez’s causes of action because it claimed that when it provided Sanchez “with all of the leave mandated by the PDLL and the CFRA, it necessarily had satisfied all of its obligations under the FEHA” and therefore her claims were not viable.  

The trial court concluded Swissport’s discharge of Sanchez after she exhausted her pregnancy leave and could not return to work is conduct expressly permitted under the Government Code.  The trial court dismissed Sanchez’s lawsuit.

Decision

The court of appeal reversed the decision of the trial court and held Sanchez could proceed with her FEHA claims against Swissport.  Employment discrimination on the basis of sex, physical disability or medical condition is prohibited by FEHA.  The definition of “sex” under FEHA includes “[p]regnancy or medical conditions related to pregnancy.”  Pursuant to FEHA, an employer must “provide reasonable accommodations for an employee’s known disability, unless the employer demonstrates that the accommodation would produce ‘undue hardship . . . to its operation.”  An employer is not prohibited by FEHA “from discharging an employee with a physical disability or medical condition who ‘is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.’”

The PDLL’s provisions are contained within FEHA’s broader provisions.  The PDLL states “[i]n addition to the provisions that govern pregnancy, childbirth, or a related medical condition,” in Government Code sections 12926 and 12940, “an employer must ‘allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work, as set forth in the commission’s regulations.’”  The employer must allow the employee to use any accrued vacation leave during this period of time.  “Reasonable period of time” is defined as “that period during which the female employee is disabled on account of pregnancy, childbirth, or a related medical condition.”  The PDLL states that it should “not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this part, including subdivision (a) of Section 12940.”

The PDLL’s implementing regulations state that an employer must provide leave, as needed, for up to four month “even if an employer has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees.”  However, if the employer “has a more generous leave policy for similarly situated employees with other temporary disabilities than is required for pregnancy purposes under these regulations, the employer must provide the more generous leave to employees temporarily disabled by pregnancy.”  

Pursuant to the PDLL, an employee who is disabled by pregnancy is entitled to leave regardless of any hardship to her employer.  Under FEHA, whether a disabled employee is entitled to a reasonable accommodation is dependent on whether the accommodation will impose an undue hardship on the employer.

Swissport asserts the PDLL is the exclusive remedy for an employee who seeks reasonable accommodation of her pregnancy-related disability.  It asserts that once Sanchez exhausted her four months of leave under the PDLL, she was no longer entitled to protection under FEHA.  Specifically, Swissport asserts she is not entitled to a reasonable accommodation of her pregnancy-related disability, even if such accommodation would not cause undue hardship to the employer, and even if a nonpregnancy-related disability might warrant such accommodation.

The court rejected Swissport’s proposed construction finding that it “is contradicted by the plain language of the PDLL, which makes clear that its remedies augment, rather than supplant, those set forth elsewhere in the FEHA.”  The PDLL’s remedies are “in addition to” the remedies provided by FEHA that govern pregnancy, childbirth, and pregnancy-related medical conditions.  The court found that “to construe compliance with the PDLL as satisfying all other requirements of the FEHA, including section 12940, would violate the express mandate of the PDLL that its provisions ‘not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this part, including subdivision (a) of Section 12940.’” 

Swissport asserts that the language in the PDLL that provides that leave is “not to exceed four months” limits its obligation to a pregnancy-disabled employee.  The court found it does not.  This language “merely defines the employer’s obligations under the PDLL, which are, by its terms, in addition to those provided elsewhere in the FEHA, and may not be construed ‘in any way to diminish’ the coverage of a pregnancy-related medical condition ‘under any other provision’ of the FEHA.”  Pursuant to section 12940, “a woman disabled by pregnancy is entitled to the protections afforded any other disabled employee — a reasonable accommodation that does not impose an undue hardship on her employer.”  This disability leave may exceed four months.  Swissport’s construction that would limit leave to four months “would thus ‘diminish the coverage’ of pregnancy-related disabilities otherwise provided ‘under any other provision’ of the FEHA — precisely what the PDLL e[x]pressly prohibits.”  

The court found Sanchez alleged viable FEHA-related claims under section 12940, subdivision (a), which prohibits employment discrimination on the basis of sex because she alleged Swissport fired her because she was pregnant and pregnancy discrimination is a form of sex discrimination. She also alleged Swissport fired her because she was unable to work due to her high-risk pregnancy.  The court noted that “[b]eing unable to work during pregnancy is a disability for the purposes of section 12940.”  Sanchez asserts that if Swissport had granted her additional leave until childbirth, she would have been able to perform the essential functions of her job with little or no further accommodations.   The court found “this allegation disposed of any contrary inference that she was “unable to perform . . . her essential duties even with reasonable accommodations.” 

Sanchez stated “a viable claim under section 12940, subdivision (m), which mandates that an employer provide reasonable accommodations for the known physical disability of an employee.”  She alleged she was unable to work during her pregnancy, Swissport denied her reasonable accommodations and terminated her, and the accommodations she requested would not have imposed an undue hardship on Swissport.  “A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA.”   Swissport is free to challenge Sanchez’s allegation that the requested accommodations would impose no undue hardship upon it, but for the purposes of the demurrer sought by Swissport, Sanchez stated a viable cause of action under section 12940, subdivision (m).  She also stated a viable claim under section 12940, subdivision (n) for Swissport’s alleged failure to engage in an interactive process to determine effective reasonable accommodations and under section 12940, subdivision (h), for retaliation.

By: Laura Izon Powell, Bruce A. Scheidt, Kristianne Seargeant, David W. Tyra

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