Sanchez v. Swissport, Inc., No. B237761 (February 21, 2013): A California Court of Appeal recently held that an employer may have to offer additional leave under the Fair Employment and Housing Act (FEHA) as a reasonable accommodation for a pregnancy-related disability even after the employer has provided four months of leave under the Pregnancy Disability Leave Law (PDLL) and allowed the employee to use California Family Rights Act (CFRA) leave for a difficult pregnancy. In other words, after pregnancy disability leave ends, the employer still must engage in an interactive process and provide the employee with additional leave as a reasonable accommodation under FEHA.
 
Ana Fuentes Sanchez was hired as a cleaning agent for Swissport in August 2007. In early 2009, she was diagnosed with a high-risk pregnancy and placed on bed rest. Her expected due date was in October of that year. Sanchez requested a temporary leave of absence, which was granted by Swissport. However, on or about July 14, 2009, after 19 weeks of leave, which consisted of both accrued vacation and time allotted under the PDLL and CFRA, she was fired. Sanchez sued Swissport for pregnancy discrimination and failure to accommodate (among other claims). She argued that the additional leave would have been a reasonable accommodation and that she could have returned to work with little or no accommodations after her delivery. Swissport argued that it had provided Sanchez with all of the leave mandated by the PDLL and CFRA, so it had “satisfied all of its obligations” under FEHA.

The trial judge dismissed the case, finding that at the time of her termination, Sanchez was unable to perform her essential job functions and that Swissport’s action was “expressly permitted under the Government Code.” The California Court of Appeal held that the PDLL, which provides up to four months of leave, states that the statute “shall not be construed to affect any other provision of the law relating to sex discrimination or pregnancy” and that under FEHA, a disabled person is entitled to reasonable accommodations unless the employer demonstrates undue hardship. The court held that the specific language of the PDLL referring to leave that does not exceed four months “merely defines the employer’s obligations under the PDLL, which are, by its terms, in addition to those provided elsewhere in the FEHA.”

According to Charles Thompson, a shareholder in the San Francisco office of Ogletree Deakins: “In making this determination, the court relied in part on the new pregnancy and disability regulations promulgated by the Fair Employment and Housing Commission (FEHC) that took effect on December 30, 2012. In a footnote, the court even cited a case for the proposition that the ‘reviewing court accords great weight and respect to agency's interpretation of its own statute.’”

For Mr. Thompson’s detailed analysis of the new pregnancy and disability regulations promulgated by the FEHC, click here and here.

Note: This article was published in the March 8, 2013 issue of the California eAuthority.