A California Court of Appeal has determined that an employee who alleges pregnancy related discrimination against an employer, but who has exhausted all permissible leave under the Pregnancy Disability Leave Law (“PDLL”), may nevertheless bring a claim under the Fair Housing and Employment Act (“FEHA”). (Sanchez v. Swissport, Inc. (2/21/13, No. B237761)). The court determined that the “plain language” of the PDLL makes it clear that its remedies augment, rather than supplant, other FEHA remedies.
In this case, Plaintiff Ana Sanchez was diagnosed with a high-risk pregnancy, requiring her to be on bed rest until her child was born. During her pregnancy, Swissport, Inc. provided Sanchez with 19 weeks of leave. The leave included all of her accrued vacation time as well as the maximum amount of leave provided for by the California Family Rights Act (“CFRA”) and the PDLL. Sanchez had not yet given birth when her leave was exhausted. Accordingly, she requested an additional leave of absence and allegedly informed Swissport that she would be able to return to work once she had given birth.
However, according to Sanchez, once she had exhausted the 19 weeks of leave, Swissport did not consider her request for additional leave and, instead, terminated her employment. Sanchez sued, alleging violations of the FEHA, including a failure to engage in the interactive process, a failure to consider her request for the accommodation of additional leave and gender discrimination (i.e., that her employment was terminated due to her pregnancy). As the basis for her complaint, Sanchez argued that she was entitled to reasonable accommodations for her pregnancy-related disability and protection from discrimination under FEHA, independent of the leave provisions contained in CFRA and PDLL.
In response, Swissport argued that Sanchez had failed to state a cognizable claim because, in meeting its obligations to Sanchez under the CFRA and PDLL, it had also met its obligations under FEHA. The Superior Court of Los Angeles County agreed with Swissport and dismissed Sanchez’s claims.
Sanchez appealed the decision to the Court of Appeal, which reversed the Superior Court’s order dismissing the action. The Court of Appeal explicitly rejected Swissport’s contention that once the maximum four-month leave period specified by the PDLL has expired, an employee is no longer entitled to any other protections offered by FEHA.
The court explained that the PDLL, which is contained within the broader provisions of FEHA, provides that its rights and remedies are “in addition to” those set forth elsewhere in FEHA, including those rights and remedies related to the interactive process, reasonable accommodation and freedom from discrimination in employment. (Government Code § 12940.) Based on its conclusion that the PDLL does not displace other provisions of FEHA, the Court of Appeal determined that Sanchez could proceed with her claims under FEHA, and further advised that a leave of absence may constitute a reasonable accommodation, provided that such an accommodation does not impose an undue hardship on the employer.
Note that the Court of Appeal did not rule upon the merits of the case. Rather, its decision simply allowed Sanchez to move her case forward to the trial stage. The Court expressly noted that Swissport was free to challenge Sanchez’s factual allegations during the trial.
This case serves to remind employers of the nonexclusive nature of the four-month leave period provided under the PDLL for employees disabled by pregnancy, childbirth or a related medical condition. A finite leave of longer than four months can be, in some cases, a reasonable accommodation under FEHA when it is likely the employee will be able to return to work.
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F3 NewsFlash prepared by John Norlin.
John Norlin is Special Counsel in the F3 San Diego office.
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