Pregnant Worker Who Exhausted Leave Under California Law Still Has Bias Claims
A cleaner who had a high-risk pregnancy and was fired after exhausting her leave under California’s Pregnancy Disability Leave Law still may have viable discrimination claims based on alleged failure to provide additional leave as a reasonable accommodation for her pregnancy-related disability, the California Court of Appeal held Feb. 21 in an issue of first impression (Sanchez v. Swissport Inc., Cal. Ct. App., No. B237761, 2/21/13).
In October 2011, a state trial court dismissed Ana Fuentes Sanchez’s California Fair Employment and Housing Act bias claims against Swissport Inc., which had argued that it satisfied its FEHA obligations to Sanchez when it provided her with all of the leave mandated by the PDLL and another state law.
Reversing the lower court and rejecting Swissport’s contention, the appeals court found that while the PDLL provides up to four months of leave for an employee disabled by pregnancy, the FEHA allows a disabled employee to request “leave of no statutorily fixed duration” as a reasonable accommodation so long as it poses no undue hardship to an employer.
Given that the plain language of the PDLL states that its remedies “augment, rather than supplant, those set forth elsewhere in the FEHA,” the court said a woman disabled by pregnancy still would be “entitled to protections afforded any other disabled employee.”
Justice Nora Manella wrote the opinion, joined by Justices Thomas L. Willhite and Steven C. Suzukawa.
Worker Had High-Risk Pregnancy, Required Bedrest
According to the court, Swissport granted Sanchez a temporary leave of absence after she was diagnosed in February 2009 as having a high-risk pregnancy that required bedrest.
Sanchez was due to give birth in October 2009. However, Swissport fired her in July 2009 after she had exhausted more than 19 weeks of leave, which included her own accrued leave as well as time off provided under the PDLL and the California Family Rights Act.
Sanchez brought several claims against Swissport, including FEHA sex, pregnancy, and pregnancy-related disability discrimination, failure to accommodate, and retaliation.
In an amended complaint, Sanchez contended that Swissport failed to engage in a good-faith interactive process to identify available accommodations for her pregnancy-related disability, such as an extended leave of absence, and that such accommodations would not pose an undue hardship to the company.
In response, Swissport filed a demurrer, arguing that Sanchez’s FEHA claims centered on its purported failure to provide her with additional leave for her pregnancy-related disability. The company maintained that her claims were not viable because it had provided Sanchez with all the leave to which she was entitled under the PDLL and the CFRA.
The Los Angeles County Superior Court in October 2011 sustained Swissport’s demurrer and dismissed Sanchez’s complaint, finding no viable FEHA causes of action. Swissport, the trial court said, was entitled to fire Sanchez because she was not able to perform her job’s essential functions when her statutorily authorized pregnancy leave expired.
Court Says Worker Still Has Viable FEHA Claims
Reversing, the appeals court ruled that Sanchez still has actionable FEHA claims despite exhausting her PDLL leave.
FEHA Section 12940 bars employers from discriminating based on sex, physical disability, or medical condition, the court said. It explained that the PDLL is part of the FEHA and allows 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” (Cal. Gov’t Code § 12945(a)(1)).
Given that the plain language of the Pregnancy Disability Leave Law states that its remedies “augment, rather than supplant, those set forth elsewhere in the [Fair Employment and Housing Act],” the California Court of Appeal said a woman disabled by pregnancy still would be “entitled to protections afforded any other disabled employee.”
Swissport argued that the PDLL’s “not to exceed four months” language specifically defines the amount of leave an employer is obligated to provide a pregnancy-disabled employee. The company asserted that the PDLL’s four-month leave period is the “exclusive remedy” for employees seeking leave as a reasonable accommodation under the FEHA for pregnancy-related disabilities, even absent undue hardship.
The appeals court disagreed, observing that the PDLL further states that it “shall 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 [FEHA Section 12940].”
“We conclude that Swissport’s proposed construction 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 court said. “By its terms, the PDLL provides that its remedies are ‘in addition to’ those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA, including section 12940.”
The “fallacy” of Swissport’s argument “is made clear simply by excising the provisions of the PDLL from the FEHA and examining what remains,” the court said.
Even without the PDLL, a female employee disabled by pregnancy still would be “entitled to the protections afforded any other disabled employee,” including reasonable accommodations that do not pose an undue hardship to an employer, the court said. It found that based on California precedent such accommodation could include “leave of no statutorily fixed duration.”
“Swissport’s construction would thus ‘diminish the coverage’ of pregnancy-related disabilities otherwise provided ‘under any other provision’ of the FEHA–precisely what the PDLL expressly prohibits,” the court said.
Sanchez’s complaint included allegations that she was fired because she could not work during her high-risk pregnancy, and that she would have been capable of performing her job’s essential functions with or without reasonable accommodation if she had been granted additional leave, the court said.
For demurrer purposes, the court held that Sanchez stated viable causes of action under the FEHA. Swissport is “free to challenge” her contention that an accommodation of additional leave would pose no undue hardship, the court said.
Ebby S. Bakhtiar of Livingston Bakhtiar in Los Angeles and Carney Shegerian of Shegerian & Associates in Santa Monica, Calif., represented Sanchez. Patrick J. Cain of Rodi, Pollock, Pettker, Christian & Pramov in Los Angeles represented Swissport.
By Jay-Anne B. Casuga
Text of the opinion is available at http://about.bloomberglaw.com/blaw2/files/2013/02/Swissport.pdf.