Metropolitan News-Enterprise


Monday, February 25, 2013


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Appeals Court Says Pregnancy Bias Law Does Not Supplant FEHA

Justices Allow Woman Fired After Using All Statutory Leave to Sue Employer




A woman who was unable to return to work after using up all of the leave allowed by California’s Pregnancy Disability Leave Law can still sue her employer under the Fair Employment and Housing Act on charges that include refusing to allow her additional leave, the Court of Appeal for this district has ruled.

Div. Four held Thursday that the right to specified amounts of leave under the PDLL augments, rather than displaces, the broad rights and remedies granted by the FEHA. The panel also held that Ana Fuentes Sanchez had adequately pled FEHA claims for sex and disability discrimination and retaliation.

The plaintiff alleged that she was working for Swissport, Inc. as a cleaning agent in February 2009, when she was diagnosed with a high-risk pregnancy requiring bedrest. She alleged that she told her employer she expected to deliver in October 2009 and would be ready to return to work shortly thereafter, but that she was terminated as soon as her 19 weeks of combined accrued vacation time and statutorily mandated leave expired.

Disability Bias Claimed

Her termination, she said, was motivated by her pregnancy and pregnancy-related disability and/or requests for reasonable accommodation in the form of additional leave. She further alleged that the company made no effort to engage in an interactive process that might have identified other types of reasonable accommodation, and that “the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship upon [Swissport], nor would said accommodations have adversely impacted, in any way, the operation of [its] business.”

The company demurred on the ground that its grant of all of the leave required by the PDLL and California Family Rights Act constituted a complete defense to all of the plaintiff’s causes of action. Those laws, and implementing regulations, require employers to grant pregnant workers four months’ leave, or as much leave as they grant to other temporarily disabled employees, whichever is greater.

Los Angeles Superior Court Judge Teresa Sanchez-Gordon agreed with the defendant and dismissed the action.

Legislative Intent

But Justice Nora Manella, writing for the Court of Appeal, said the Legislature’s intent in amending the FEHA to add the pregnancy leave provisions was not to supplant other remedies.

Read as a whole, the justice explained, the law requires employers to grant the specified amount of leave to their pregnant employees, even if it constitutes a hardship to the employer, but does not excuse an employer from the reasonable-accommodation requirement after that leave has been exhausted.

“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,” the justice wrote.

The PDLL, Manella noted, expressly provides that its remedies are “in addition to” those in the FEHA, and that its provisions “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.”

Recent Regulation

The jurist also pointed out in a footnote that the Fair Employment and Housing Commission recently promulgated a regulation expressly stating that the right to PDLL leave “is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation under Government Code Sec. 12940.”

Manella went on to conclude that Sanchez’s allegations that she was fired because she was pregnant and because she was unable to work during her high-risk pregnancy, that she would have been able to fully return to work after giving birth, and that the company could have granted her additional leave without suffering undue hardship—but fired her rather than engage in the interactive process—pled causes of action for sex and disability discrimination and denial of reasonable accommodation.

The justice also concluded that Sanchez pled a claim for retaliation by alleging that she was fired because she sought reasonable accommodation.

Attorneys on appeal were Ebby S. Bakhtiar of Livingston Bakhtiar and Carney R. Shegerian of Shegerian & Associates, Inc. for the plaintiff and Patrick J. Cain of Rodi Pollock Pettker Christian & Pramov for the defendant.

The case is Sanchez v. Swissport, Inc., 13 S.O.S. 961.


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