Recently a pregnant woman in New York City was fired from her job as a produce sorter in a factory.
Angelina Valencia worked long hours. After several trips to the emergency room her doctor ordered her to work no longer than eight (8) hours in a day. He wanted to prevent her high-risk pregnancy from spontaneously aborting. Desperate to protect the health of her unborn child, Valencia was just as desperate to hang on to the $8.70 an hour she brought home to augment the family income. She was terrified of discrimination – that her employer would let her go.
She Was Fired…
When she presented her boss with the doctor’s note, she was fired. Unfortunately, Ms. Valencia didn’t know her rights. When she was dismissed for being “unable to provide a full-duty release” and thus unable to continue her employment, she didn’t know what a “reasonable accommodation” was. Ms. Valencia did not understand that her employer was required under New York law to work with her to find a solution that would allow her to continue to work without risking her baby. If her employer couldn’t reach such an accommodation, they must give her cause as to why it was not feasible. Outlining what about such lighter duties would pose “an undue hardship” to the company were they to allow her to remain at her job.
… So She Sued
Ms. Valencia is currently suing her former employers, Fierman Produce Exchange, for back wages and a breach of the Pregnant Workers Fairness Act (“PWFA”), a law in New York City which extends the benefits of the ADA (Americans with Disabilities Act) to companies with four or more employees, rather than the fifty or more employees required under Federal law. Both the New York City PWFA and Federal law also require that an employee be notified by the employer of these rights when the issue arises and a request for accommodation is made. Fierman Produce failed to accommodate and to notify Ms. Valencia of her rights, which underscores the need for employees to make themselves aware of what they can and cannot ask of an employer.
Do you know what your rights are in this situation?
In California, the law requires an employer to grant an employee’s request for reasonable accommodation for a condition related to pregnancy, childbirth or a related medical condition, upon the advice of her physician. The accommodation may include a transfer to a less strenuous or hazardous position if the transfer can be reasonably accommodated. An employee in California is also entitled to up to four months leave, in conjunction with the pregnancy.
Employers with five or more employees are bound by the law, and must provide reasonable advance notice of these rights to their pregnant workers. Employers are also prohibited from retaliating against employees for exercising their rights under the law.
The Swissport Case
In Sanchez v. Swissport, Inc., 213 Cal.App.4th 1331 (Cal. Ct. App. Feb. 21, 2013) a cleaning agent for Swissport, Inc. had exhausted her leave under the California Pregnancy Disability Leave Law (“PDLL”), California Family Rights Act and had used all her accrued vacation, but her doctor had ordered continued bed rest as the safest course of action to allow her at-risk pregnancy to come to term. When she failed to return to work after exhausting this leave, because her doctor prohibited it as unsafe, Ms. Sanchez was discharged. She subsequently sued her employer for discrimination under the California Fair Employment and Housing Act (“FEHA.”)
The FEHA prohibits an employer from discriminating on the basis of sex, physical disability, or medical condition, among other things. Cal. Gov’t Code § 12940(a). “Sex” is defined to include “[p]regnancy or medical conditions related to pregnancy.” Cal. Gov’t Code § 12926(q)(1). 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.” Cal. Gov’t Code § 12940(m).
Swissport argued that Sanchez was entitled to a maximum leave period of four months under the PDLL, and once that period is used up, she was entitled to no other protection under the FEHA. The Court concluded that Swissport’s argument was “contradicted by the plain language of the PDLL,” which provides that its remedies “augment, rather than supplant, those set forth elsewhere in the FEHA.” Cal. Gov’t Code § 12945(b). The Court also noted that its ruling was supported by the new Pregnancy Disability Leave Regulations, effective December 30, 2012, which provide that the “right to take pregnancy disability leave under Government Code section 12945 and these regulations is separate and distinct from the right to take a leave of absence as a form of reasonable accommodation under Government Code section 12940. 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 12940.” Cal. Code Regs., tit. 2, § 7291.14.
In light of Sanchez, a woman need not fear losing her job or her baby when her doctor has prescribed additional leave time to protect her health, or the health of her unborn child. Unless the employer can show that the accommodation will cause undue hardship, it is required to accommodate under Federal and California law.
It is unlawful for an employer to discriminate in terms of compensation, conditions, or privileges of employment because of pregnancy. So if you find yourself pregnant and are afraid of losing your job, know your rights. If you believe your rights have been ignored by an employer, contact an employment attorney.
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117