On July 25th, 2011, appellant Ana Fuentes Sanchez filed a First Amendment Complaint against her former employer Swissport, Inc. She alleged causes of action for discrimination based on pregnancy disability, discrimination based on sex, and failure to prevent discrimination.
Sanchez accused Swissport of failure to accommodate and engage in a timely, good faith interactive process. Additionally, she alleged retaliation, wrongful and tortious discharge from her position, and intentional infliction of emotional distress. Finally, she claimed that Swissport had engaged in unfair business practices under California Business and Professions Codes, and breach of implied and/or express contract.
Sanchez alleged that she was employed by Swissport from August 2007 until July 14, 2009 as a cleaning agent. Around February 27, 2009, she was diagnosed with a high- risk pregnancy. Naturally, her doctor required her to get plenty of bed rest.
After her diagnosis, she requested and received a temporary leave of absence from Swissport. Appellant alleged that Swissport had actual knowledge that she was anticipated to deliver her baby on or about October 19, 2009. She also alleged that Swissport knew she needed a leave of absence lasting until she gave birth.
Sanchez claimed 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.” She further alleged that Swissport afforded her just over 19 weeks of leave, consisting of her accrued vacation time in addition to the time allotted by the California Family Rights Act (CFRA) and Pregnancy Disability Leave Law (PDLL) before abruptly terminating her employment on or about July 14, 2009.
Appellant alleged that she was fired because of her pregnancy, her pregnancy-related disability and/or her requests for accommodations. Appellant also alleged that “at no time prior to the termination of her employment, did Swissport ever contact her to engage in a timely, good faith interactive process.”
She went on to accuse them of failing to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed.” Finally, she alleged that reasonable accommodations necessitated by her pregnancy would not have created an undue hardship upon the company, nor would they have adversely impacted the operation of business.
On September 9, 2011, Swissport filed a demurrer to the FAC. They asserted that because they had provided the appellant with all of the leave mandated by the PDLL and the CFRA, they had satisfied all legal obligations under the FEHA. Thus, Swissport argued the appellant’s claims were not viable.
On September 29, 2011, the appellant filed an opposition, arguing that she was entitled to reasonable accommodations for her pregnancy-related disability under the FEHA. Specifically, she contended she was afforded protection by the general anti-discrimination provision of section 12940. She argued that “just because a pregnant employee is unable to perform the essential functions of her job without accommodations upon the exhaustion of her leave, does not preclude her entitlement to protection under FEHA since she may be able to perform her job’s essential functions with reasonable accommodations.”
She further argued that providing additional leave was a reasonable accommodation for a known disability. Appellant also argued that her pregnancy-related disability was “a condition that is transient in nature,” as it would resolve itself after she delivered her baby. Unsurprisingly, Swissport filed a reply, arguing that her pregnancy disability statutes and regulations were capped at four months.
At the hearing, the superior court observed that “at the time of her termination in July 2009, the plaintiff was unable to perform her essential job functions. They went on to note that this did not prohibit an employer from discharging an employee who is unable to perform her essential duties of her job, even with accommodation.
The court concluded that the plaintiff’s discharge after her pregnancy leave expired and the fact that she was unable to return to work was conduct expressly permitted under the law. On October 13, 2011, the superior court sustained the demurrer without leave to amend. An order dismissing the action was entered November 17, 2011. Naturally, Sanchez appealed the decision in a timely manner.
Because the demurrer was sustained based upon an interpretation of certain provisions of the FEHA, the court needed to determine whether the trial court’s interpretation was correct.
Ultimately, the FEHA prohibits discrimination in employment based on, inter alia, sex, physical disability, or medical condition. “Sex” is defined to include pregnancy or medical conditions related to pregnancy. 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. 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.”
The PDLL states that, in addition to provisions governing pregnancy, childbirth, or a related medical condition, an employer must allow a female employee 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.” Additionally, said employee shall be entitled to utilize any accrued vacation leave during this period of time.
Thus, under the PDLL, an employee disabled by pregnancy is entitled to up to four months of disability leave, regardless of any hardship to her employer. Under the FEHA, a disabled employee is entitled to reasonable accommodations provided that such accommodation does not impose an undue hardship on the employer. They determined that holding a job for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return in the foreseeable future.
Swissport contended that the once the maximum four-month leave period specified in the PDLL has expired, Sanchez was entitled to no other protection under the FEHA. Specifically, Swissport claimed that Sanchez was not entitled to a reasonable accommodation of her pregnancy-related disability, even if such accommodation would not cause undue hardship to the employer.
It was concluded that Swissport’s defense was contradicted by the PDLL. 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 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 related conditions.
Swissport suggested that the specificity of this language necessarily defines the limits of an employer’s obligation to a pregnancy-disabled employee. It does not. It merely defines the employer’s obligations under the PDLL, which are, by its terms, in addition to those provided elsewhere in the FEHA, and may not be construed “in any way to diminish” the coverage of a pregnancy-related medical condition “under any other provision” of the FEHA.
The fallacy of Swissport’s interpretation was made clear simply by excising the provisions of the PDLL from the FEHA and examining what remained. Ultimately, under section 12940, a woman disabled by pregnancy is entitled to the protections afforded any other disabled employee. As the case law made clear, disability leave may in some circumstances exceed four months.
Instead, the appellant alleged viable FEHA-related claims. Her FAC alleged that Swissport fired her because she was pregnant; a form of sexual discrimination. The FAC also alleged that appellant was fired because she was unable to work during her high-risk pregnancy, and that the inability to work during pregnancy is a disability for the purposes of section 12940.
In addition, appellant alleged that, 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. The superior court’s factual finding that “at the time of her termination in July 2009, plaintiff was unable to perform her essential job functions at all” was merely a finding that appellant was disabled at the time of her termination. The court did not find that appellant was “unable to perform … her essential duties even with reasonable accommodations.”
Findings determined that the original court erred in concluding that section 12940 expressly permitted Swissport to fire appellant. Sanchez also stated a viable claim under section 12940, subdivision (m), which mandates that an employer provide reasonable accommodations for the known physical disability of an employee. She alleged that she was unable to work during her pregnancy, that she was denied reasonable accommodations for her pregnancy-related disability and terminated, and that the requested accommodations would not have imposed an undue hardship on Swissport.
Appellant’s allegation that the requested accommodations would impose no undue hardship upon Swissport is one which Swissport is free to challenge. For purposes of a demurrer. However, appellant stated a viable cause of action under section 12940, subdivision (m) of the FEHA. For similar reasons, she also stated a claim under section 12940, subdivision (n) for Swissport’s alleged failure to engage in an interactive process to determine reasonable accommodations.
Finally, appellant stated a claim under section 12940, subdivision (h), which prohibits an employer from retaliating against an employee for exercising her rights under section 12940. Appellant alleged she was fired because she sought reasonable accommodations for her disability. In short, it was concluded the superior court erred in sustaining the demurrer on the ground that appellant had no actionable claim under the FEHA because respondent had provided her with 19 weeks of leave under the PDLL.
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