EMPLOYEE TERMINATED AFTER FAILING TO RETURN FROM EXTENDED PREGNANCY LEAVE LOSES DISCRIMINATION, WRONGFUL TERMINATION, AND RELATED CLAIMS
A California Court of Appeal recently decided one of the most elaborate pregnancy discrimination and wrongful termination claims asserted under California law. The case included a number of claims based on the Fair Employment and Housing Act (“FEHA”). In Lopez v. La Casa De Las Madres, 89 Cal. App. 5th 365 ( 2023), the court of appeal affirmed summary judgment in favor of the employer who granted an employee several extensions of her pregnancy disability leave. However, the employer did not make accommodations that either were not needed due to a pregnancy-related condition or accommodations that were not enough to enable her to perform the essential functions of her position. The decision is historically significant. In reaching its conclusion, the court entered unchartered territory regarding California’s pregnancy and disability discrimination statutes.
Gabriela Lopez filed an employment discrimination and wrongful termination lawsuit against La Casa de Las Madres (“La Casa”), a nonprofit organization that provides services to women and children who are victims of domestic violence. Lopez worked for La Casa at various times between 2002 and 2017 and became the shelter manager at La Casa’s residential center for domestic violence victims in 2014. She gave birth in September 2016, and did not return to work due to a series of events that gave rise to her lawsuit.
The trial court entered judgment in favor of La Casa following a bench trial. On appeal, Lopez argued the trial court misapplied provisions of the FEHA that require an employer to provide reasonable accommodations for a pregnancy-related condition. The court of appeal affirmed the trial court’s judgment. It concluded a cause of action under the FEHA, Government Code Section 12945(a)(3)(A), requires proof that: (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested accommodation of this condition with the advice of her health care provider; (3) the plaintiff’s employer refused to provide a reasonable accommodation; and (4) with the reasonable accommodation, the plaintiff could have performed the essential functions of the job.
The court of appeal determined that the trial court applied a correct understanding of these four elements. Further, contrary to the plaintiff’s contention, the trial court properly placed the burden on the plaintiff to prove that she had a “condition” related to pregnancy, and that she was able to perform the essential functions of her job with reasonable accommodation.
2. The Trial Court’s Decision
The trial court found that Lopez failed to carry her burden of proving one or more elements of each claim she pursued at trial. This included (a) her pregnancy discrimination and failure to prevent discrimination claim, (b) her disability discrimination claim, (c) her failure to accommodate disability claim, and (d) her wrongful termination claim.
Her pregnancy discrimination claim was based on a statute that makes it unlawful for an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if the employee so requests, with the advice of the employee’s health care provider. The trial court found that Lopez failed to establish three elements it considered essential to this claim: that she (1) had a condition related to pregnancy; (2) could perform the essential functions of her job; and (3) was denied a reasonable accommodation, as requested on the advice of a health care provider. The court concluded that Lopez failed to establish that the condition for which she sought an accommodation (depression) was pregnancy related.
Further, even though clinical depression and post-partem depression are mental disabilities under the FEHA, Lopez failed to prove her claim because she did not prove that she was otherwise qualified to perform the shelter manager job given her need to avoid stressful duties. The trial court found that the elements of a failure to accommodate claims are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff can perform the essential job functions of the position; and (3) the employer failed reasonably to accommodate the plaintiff’s disability.
Finally, the trial court found that the claim Lopez was wrongfully terminated in violation of public policy (the policies in the FEHA) failed because the employer did not violate the FEHA.
3. The Significance Of The 2013 Decision In Sanchez v. Swissport
a. Providing Four Months Leave May Not Be Enough
The Supreme Court previously held that “an adverse employment action on the basis of disability is not prohibited [by the FEHA] if the disability renders the employee unable to perform his or her essential duties, even with reasonable accommodation. The court of appeal found the decision in Sanchez v. Swissport, Inc., 213 Cal. App.4th 1331 (2013), extremely important for several reasons. First, Sanchez did not support the employer’s argument that once an employee receives four months of pregnancy disability leave, she has no further right to any other accommodation under the FEHA. The court found that the issue was never addressed in Sanchez since the only accommodation the Sanchez plaintiff requested was for an additional period of disability leave.
b. The Employee Must Be Qualified To Perform Essential Job Duties
Second, Sanchez confirms the settled principle that “the FEHA does not prohibit an employer from discharging an employee with a physical or mental 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.” Thus, the case did not support Lopez’s contention that she was not required to show that she was otherwise qualified to perform the essential functions of her job. Because it rejected her contention, the court of appeal disagreed that the trial court had committed any reversible error.
c. A Request For A Flexible Or Shortened Work Schedule Is Not A Request For Time Off For Therapy
The court also disagreed with Lopez’s claim that her employer failed to accommodate her request to take time off to attend therapy. The trial court determined that her employer would have accommodated her request to take time off for therapy, but she had submitted forms containing incomplete information. The forms she submitted recommended that, for an indefinite period, Lopez would require a flexible or shortened work schedule so she could leave work when she experienced stress.
4. The Court Rejected The Claim That A Request For A Modified Work Schedule Is A Reasonable Accommodation As A Matter Of Law
The court disagreed with Lopez’s claim that employers must always grant a request for a modified work schedule. Lopez sought to use this argument to challenge the trial court’s determination that the modification of “flexible/shortened workdays” was not a reasonable accommodation. Because the shelter manager needed to be available to make important decisions at any time and in an inherently stressful environment, the court found that an accommodation permitting Lopez to leave work whenever she experienced stress or anxiety was not a reasonable accommodation.
Likewise, the trial court justifiably determined that the offer of a temporary assignment to a data-entry position was a reasonable accommodation. It was an offer of a temporary reassignment until Lopez recovered from her unspecified disability.
Finally, the court rejected her claim that La Casa failed to prove its undue burden defense. The court concluded that the undue burden defense is an affirmative defense that only comes into play after a plaintiff has established that a specific requested accommodation was reasonable and thus required in the first place. Here, Lopez failed to prove she was denied a reasonable accommodation.
The court of appeal’s decision in Lopez covered significant new ground in the pregnancy and disability discrimination arena. Based on its analysis, the court affirmed the judgment of the trial court in favor of the employer. It also awarded the employer its costs.To read more articles like this one, subscribe to the ALERT Newsletter today!
About The Author
Richard J. Simmons is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Mr. Simmons received his B.A., summa cum laude, from the University of Massachusetts, where he was a Commonwealth Scholar and graduated in the Phi Kappa Phi Honor Society. He received his J.D. from Berkeley Law at the University of California at Berkeley where he was the Editor-in-Chief of the Industrial Relations Law Journal, now the Berkeley Journal of Employment and Labor Law.
Mr. Simmons argued the only case before the California Supreme Court that produced a victory for employers and business in 2018. He was recently recognized as the Labor and Employment Attorney of the Year by the Los Angeles Business Journal and was inducted into the Employment Lawyers Hall of Fame. He has lectured nationally on wage and hour, employment discrimination, wrongful termination, and other employment and labor relations matters. He is a member of the National Advisory Board to the Berkeley Journal of Employment and Labor Law, published by Berkeley Law at the University of California at Berkeley. He was also appointed by the California Industrial Welfare Commission as a member of three Minimum Wage Boards for the State of California.