Terminating Pregnant Employees Who Exceed Four Months of Disability Leave May Be Actionable Under the Fair Employment and Housing Act
As an employer, it is important that you are familiar with both the Fair Employment and Housing Act (FEHA) and the Pregnancy Disability Leave Law (PDLL) before you take any action with respect to pregnant employees who are on disability leave. Otherwise, terminating pregnant employees without being informed of your statutory obligations may subject you to an employment discrimination action.
On February 21, 2013, the California Court of Appeal held that a high-risk pregnant employee who exceeded the permissible four month leave under the PDLL and was subsequently terminated by her employer may still state a claim under California’s FEHA for employment discrimination. (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331.)
In Sanchez, appellant and ex-employee Sanchez worked for Swissport for almost two years. After becoming diagnosed as a high-risk pregnancy in February 2009, she informed her employer of her diagnosis and requested temporary leave of absence. Ms. Sanchez alleged that her employer knew that the baby was due in October of 2009. Ms. Sanchez was granted 19 weeks of pregnancy leave, which included her accrued vacation time and 4 months under PDLL. She was then terminated in July 2009.
Ms. Sanchez then filed a lawsuit, alleging that she was fired “because of her pregnancy, her pregnancy-related disability and/or her requests for accommodations.” She alleged “(1) discrimination based on pregnancy-related disability, (2) discrimination based on sex, (3) failure to prevent discrimination, (4) failure to accommodate and engage in a timely, good faith interactive process, (5) retaliation, (6) wrongful and tortious discharge, (7) intentional infliction of emotional distress, (8) unfair business practices under California Business and Professions Code section 17200 et seq., and (9) breach of implied and/or express contract.”
Ms. Sanchez claimed that her employer never once considered any reasonable accommodations, nor did her pregnancy cause her employer undue hardship. Nevertheless, Swissport filed a demurrer on the grounds that it provided Ms. Sanchez with the four months permitted under PDLL, and no further accommodations were required. This position was accepted by the trial court and the demurrer was sustained without leave to amend. An order of dismissal was thereafter entered, and Ms. Sanchez appealed.
The Court of Appeal analyzed the language of both the FEHA and the PDLL. The Court stated:
The FEHA prohibits discrimination in employment based on, inter alia, sex, physical disability, or medical condition. ([Gov. Code,] § 12940, subd. (a).) “Sex” is defined to include “[p]regnancy or medical conditions related to pregnancy.” (§ 12926, subd. (q)(1).) The FEHA also requires an employer to provide reasonable accommodation for an employee’s known disability, unless the employer demonstrates that the accommodation would produce “undue hardship … to its operation.” (§ 12940, subd. (m).) However, the FEHA does not prohibit an employer 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.” (§ 12940, subd. (a)(1).)
As for PDLL, it states in pertinent part:
(a) In addition to the provisions that govern pregnancy, childbirth, or a related medical condition in Sections 12926 and 12940, each of the following shall be an unlawful employment practice, unless based upon a bona fide occupational qualification:
(1) For an employer to refuse to 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 employee shall be entitled to utilize any accrued vacation leave during this period of time. Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or a related medical condition.
(Gov. Code, § 12945(a)(1) [emphasis added].)
Another section of PDLL reinforces that PDLL will not negatively affect other aspects of California law. (Gov. Code, § 12945(b) [“This section 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 subdivision (a) of Section 12940.”].) Further, “[i]f an 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. If the employer’s more generous leave policy exceeds four months, the employer’s return policy after taking the leave would govern, not the return rights specified in these regulations.” (Cal. Code Regs. tit. 2, § 7291.9(b).)
Upon review of these statutes, the Court reasoned that:
[U]nder the PDLL, an employee disabled by pregnancy is entitled to up to four months of disability leave, regardless of any hardship to her employer. (§ 12945, subd. (a).) Under the FEHA, a disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship on the employer.
Swissport attempted to argue that under PDLL, all that is required of employers is to permit four months of disability leave because “PDLL displaces, rather than augments” provisions of the FEHA related to pregnancy. The Court disagreed. Instead, the Court found that the PDLL expressly clarifies an employer’s obligations under the PDLL which are in addition to the employer’s obligations under FEHA. “Indeed, 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[.]” The court further acknowledged that California case law provided a handful of examples of where pregnancy disability exceeded four months.
The Court found that Ms. Sanchez properly alleged FEHA causes of action because she alleged (1) her pregnancy disability was the reason that she was fired, (2) “had she been granted additional leave until childbirth, she would have been able to perform the essential functions of her job with little or no further accommodations[,]” (3) reasonable accommodations would not have imposed undue hardship on Swissport, and (4) she was fired because she sought reasonable accommodations for her pregnancy disability. The court held that these allegations were sufficient at the pleading stage, so the trial court’s order of dismissal was reversed.