Employee Terminated After Exhausting Pregnancy Disability Leave Can Nevertheless Pursue FEHA Discrimination Claims

In Sanchez v. Swissport, Inc., the California Court of Appeal addressed for the first time the following question: Can an employee who exhausted all of her available leave under the California Pregnancy Disability Leave Law (“PDLL”) who was terminated when she was unable to return to work after exhausting all available PDLL leave state a claim for alleged sex discrimination or disability discrimination under the California Fair Employment and Housing Act (“FEHA”)?   The court held the answer is “yes.”  The court held that because the protections provided by the PDLL are in addition to the protections provided by the FEHA, an employee who has exhausted all available leave under the PDLL who suffers an “adverse employment action,” such as a termination, can nevertheless state a claim for alleged discrimination in violation of the FEHA.

Ana Fuentes Sanchez was employed by Swissport as a cleaning agent beginning in August 2007.  Sanchez later became pregnant, and her doctor diagnosed her pregnancy as a high-risk pregnancy requiring bed rest.   Based on that diagnosis, Sanchez requested and Swissport provided to her a temporary leave of absence beginning on February 27, 2009.  After Sanchez exhausted all of her available PDLL leave and accrued vacation time, Swissport terminated her employment on or about July 14, 2009, because she was not able to return to work and therefore unable to perform the essential functions of her job.  Sanchez was not able to return to work when her leave was exhausted because she was still on bed rest and was not due to deliver her baby until approximately October 19, 2009.

Sanchez later filed suit alleging causes of action for: (1) discrimination based on pregnancy and 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.   Sanchez alleged Swissport provide to her just over 19 weeks of leave consisting of her accrued vacation time in addition to the leave provided by the California Family Rights Act (“CFRA”) and the PDLL before terminating her employment on July 14, 2009, on the ground Sanchez had exhausted her available leave and was unable to return to work.  Sanchez further alleged Swissport knew she was scheduled to deliver her baby on or about October 19, 2009, and knew she would require a leave of absence extended at least until she delivered her baby.  Sanchez alleged also that “very soon after she was scheduled to give birth, she would have returned to work, with the need for only minimal accommodations, if any, in order to perform the essential function[s] of her job.”   Sanchez alleged Swissport terminated her employment because of her pregnancy, because of her pregnancy-related disability and/or because of her requests for accommodations and that whatever accommodations she might require would not have created an undue hardship on Swissport.

The trial court sustained Swissport’s demurrers to Sanchez’ complaint without leave to amend and dismissed her claims on the ground Sanchez failed to state a viable claim because Swissport fully complied with the PDLL and was therefore entitled to terminate Sanchez’ employment when Sanchez was not able to return to work after exhausting all of her available leave under the CFRA and PDLL.  The trial court concluded “[t]he allegations against defendant that defendant discharged plaintiff after her statutorily authorized pregnancy leave expired and that she was unable to return to work is conduct expressly permitted under the Government Code.”

On appeal, the Court of Appeal reversed the trial court.  The Court of Appeal rejected Swissport’s argument that an employer is not required to provide any further accommodation of a pregnancy-related disability once the maximum four-month leave provided by the PDLL has expired even if such further accommodation would not result in any undue hardship on the part of the employer.  The Court of Appeal concluded that argument 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 of Appeal went on to explain, “[b]y 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. . . .”

The Court of Appeal therefore held Sanchez alleged for pleading purposes viable claims for pregnancy discrimination (a form of sex discrimination), for disability discrimination, for failure to reasonably accommodate her pregnancy-related disability, for failure to engage in the interactive process to identify effective reasonable accommodations, and for retaliation because she requested reasonable accommodations of her pregnancy-related disability.  In so holding, the Court of Appeal stated, “[a] finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA.”   The court did not set an outside limit on the amount of additional leave that might be deemed to be a reasonable accommodation in a particular circumstance.

Based on the Court of Appeal’s analysis and holding in this case, depending on the facts and circumstances of a particular situation, California employers may be required to reasonably accommodate employees with disabilities or medical conditions by providing reasonable leaves of absence longer in duration than the 16 weeks of protected leave provided by the PDLL, the CFRA, and/or the federal Family Medical Leave Act.  In other words, an employer’s duty to engage in the interactive process and to reasonably accommodate an employee’s disability does not end merely because the employee has exhausted all of his or her protected leave, and the facts and circumstances of a particular situation may require the employer to provide additional leave when such additional leave is a reasonable accommodation.

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