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Pregnancy Discrimination Expanded to Include Accommodations, Dialog, Extension of Pregnancy Leave

In a decision of major importance to all California employees who are facing a leave of absence from work due to pregnancy, a recent decision should greatly assist these employees. In a case of first impression, the California Court of Appeals has held that an employer may not fire an employee who fails to return at the end of her official pregnancy leave without considering it’s obligations under the Government Code of California. In Fuentes Sanchez vs. Swissport, Inc. 2013 DJDAR 2400 (2/21/13) the Court of Appeals for the Second District held that simply giving the employee her statutory 12 weeks (plus some accrued vacation and FMLA time, bringing her total out to 19 weeks) was a violation of the Government Code’s requirement that plaintiff have a timely, good faith interactive process to identify available accommodations, such as an extended leave of absence. A reasonable accommodation which could be given without an undue ¬†hardship on the employer (or endangering co workers) should have been considered.

The court noted that the Pregnancy Disability Leave Law provides that it’s mandates should not be construed to affect any other provision of law relating to sex discrimination. The PDDL provides that employers must provide a leave of up to four months, as needed, for the period of time an employee is actually disabled because of pregnancy. Should an employer have a more generous policy, then that becomes the new floor. ¬†Under PDLL, the four months (if needed medically) is a floor, and hardship on a qualified employer (more than 5 employees under state law) is not a defense.

In essence the dispute boiled down to whether the PDLL law was exclusive of the Fair Employment and Housing Act (FEHA), which requires an accommodation and dialog for a protected condition. The employer pointed to the PDLL requiring a ceiling of four months on the leave and suggested that the specifity of the language necessarily limited the employer’s obligation. The court vehemently disagreed, noting that “it merely defines the employer’s obligations under the PDLL, which are, but its terms, in addition to those provided elsewhere in the FEHA, and may not be construed ‘in any way diminish the coverage of a pregnancy-related medical condition under any other provision of the FEHA. Section 12945(b). Under Section 12940 a woman disabled by pregnancy is entitled to the protections afforded any otehr disabled employee – a reasonable accommodation that does not impose an undue hardship on her employer. In other cases, the court held, a disability leave may exceed four months. Yet, under this employer’s reading of the law, the ODLL would serve to cap the maximum leave a pregnancy-disabled employee could take at four months, regardless of whether any additional leave would be considered a reasonable accommodation. Swissport’s construction would diminish the coverage of pregnancy-related disability other provided provided under the FEHA, something prohibited by the PDLL.

The above-referenced case against Swissport was not a decision on the merits of the plaintiff-employee’s case. It was a ruling at a preliminary, or demurrer stage, as to whether, if the facts support plaintiff’s allegations, a claim can be made. The court held yes, for pleading purposes, alleging pregnancy discrimination in this context allows the claim to go forward past the pleading stage. The court held further that plaintiff alleged claims under sex discrimination in employment, physical disability or medical condition. Prengancy discrimination is a form of sex discrimination. Badih vs. Myers, 36 Cal. App 4th 1289. As to reasonable accommodation, the court held that requested accommodation would not have imposed an undue hardship to give a leave in excess of four months may be reasonable for a known disability under the FEHA. “…, the seven extra months of leave (in another case cited by the court), constitutes a reasonable accommodation. Watkins vs. Ameripride Service, 375 F2d at 8288-29. (employer did in fact satisfy obligation to reasonably accommodate employee’s disability by leaving job open for a year in order to allow the employee to reclaim the job).

The court held that plaintiff had a valid claim for retaliation for exercising her rights under section 12940 of the California Government Code. She alleged she had been fired for seeking reasonable accommodations. That stands independently of whether or not reasonable accommodations were available. (A parallel provision is found in Labor Code 1102.5(c), which states that a California employee may not be terminated for complaining about violations of law. The actual violation need not be proven, only that the employee reasonably believed that it was violated. The purpose of this code is to prohibit employers from retaliating against good-faith reports of wrong doing. Employees should not have to worry about ultimately “proving” the case, just that they reasonably believed it was illegal conduct.

A regulation recently adopted by the California Fair Employment and Housing Commission supports this decision: “(t)he right to take pregnancy disability leave under Government Code Section 12945…is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation…At the end or depletion of an employee’s pregnancy disability leave, an employee who has a physical or mental disability (which may or may not be due to pregnancy, childbirth, or related medical conditions) may be entitled to reasonable accommodation under Government Code section 112940. Entitlement to leave under section 12940 must be determined on a case-by-case basis, using the standards providing in the disability discrimination provisions o…and is not diminished by the employee’s exercise of her right to pregnancy disability leave. Cal Code Regs, tit 2, section 7291.14 (eff 12/20/12).

Bottom line for pregnant employees: make sure you ask your employer for an extension of pregnancy disability leave if you medically need it! The days of Human Resources blindly announcing lay off or termination following exhaustion of pregnancy leave are over in many cases.

As always, this blog should be considered educational in nature only, not legal advise. Such advise can only be given by an attorney licensed in your state and familiar with the law in this area and the facts of your case. We welcome your inquiry and if we can’t help you, will try to find an attorney who can! Steve Danz

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