by Sayema Hameed
What happens when a pregnant employee who exhausts all of her vacation time and pregnancy disability leave cannot return to work because she is disabled by a high risk pregnancy? In the case of Ana G. Fuentes Sanchez, she was fired by her employer, Swissport, Inc., due to her failure to return to work.
Ms. Fuentes Sanchez filed suit against Swissport, alleging pregnancy discrimination under California’s Fair Employment and Housing Act (“FEHA”), Government Code Section 12900 et seq. The trial court concluded that she failed to state a claim under FEHA because her employer had given her the maximum leave allowed under the Pregnancy Disability Leave Law, Government Code Section 12945. The Court of Appeal, however, reversed the trial court, concluding that the plaintiff sufficiently stated a cause of action under FEHA for employment discrimination. Sanchez v. Swissport, Inc. (filed February 21, 2013, Second District, Div. Four, Case No. B237761).
In this case of first impression, the Court of Appeal explained that employees who exhaust all of their statutory pregnancy disability leave may nevertheless state a claim for employment discrimination under FEHA because the remedies of the Pregnancy Disability Leave Law are meant to augment, not displace, the remedies available under FEHA.
The statutory leave of four months available under the Pregnancy Disability Leave Law are “in addition to” the remedies set forth in FEHA relating to pregnancy, childbirth, and pregnancy-related medical conditions. Compliance with the Pregnancy Disability Leave Law, therefore, does not relieve an employer of its obligations under FEHA, including the obligation to provide a reasonable accommodation (which may include leave longer than four months) to an employee disabled by pregnancy, provided that the accommodation does not impose an undue hardship on the employer.
In this case, Ms. Fuentes Sanchez alleged that Swissport terminated her employment because she was unable to work during her high-risk pregnancy, refused to grant her a reasonable accommodation in the form of allowing her to remain on leave until she gave birth, and fired her in response to her request for such an accommodation. The Court of Appeal concluded that these allegations were sufficient to state claims for sex and disability discrimination and retaliation in violation of the FEHA.
The lesson of this case is that employers do not fulfill their obligations under FEHA by granting the statutory pregnancy disability leave of four months. Employers who are on notice of an employee’s disability (which includes a pregnancy-related disability) are still required to engage in a good faith, interactive process with that employee to determine if the employer can provide a reasonable accommodation to the employee without undue hardship on the employer. That reasonable accommodation could be granting the employee an extended leave with a duration longer than four months.