Employment Law Alliance Founder and CEO and Hirschfeld Kraemer LLP Partner Stephen J. Hirschfeld was quoted by Law360 in the article “Calif. Pregnancy Bias Case Shows Cos. Must Engage Workers.” The article explores a recent decision by Court of Appeal of the State of California, Second Appellate District in Sanchez v. Swissport Inc., B237761, which found that a pregnant employee fired by a company after she had taken leave beyond what is stipulated in California’s Pregnancy Leave Law could still bring suit under the state’s Fair Employment and Housing Act – a statute that bars discrimination on the basis of sex, disability and medical condition.
Hirschfeld notes that California’s Pregnancy Leave Law provides up to 16 weeks of leave and the Fair Employment and Housing Act provides up to 12 weeks of leave. When combined, the total leave time can be quite substantial. In light of this, he suggests employers – especially small businesses that often have less flexibility in terms of staffing capacity – maintain an active dialogue with employees on leave to get a clear sense of how long they expect to be away, what capacity they might have to work part time and whether another work option is feasible.
Hirschfeld is quoted as saying, “When an employer has an employee who has some kind of medical, physical or emotional ailment, the law requires it to sit down and look at what can be done, if possible, to accommodate that person to see whether the worker can remain gainfully employed and the employer can continue to have the needs of the job met.”
A key takeaway from this case, according to Hirschfeld, is that employers need to be cautious as their obligations to employees may extend beyond statutory leave. However, he stressed that this ruling should not concern employers to the degree that it affects their hiring and promotion decisions. He elaborated that companies should be upfront with the expectations of a position, including time commitments, but should not assume a job would be harder for a woman than a man as that would constitute sex discrimination.
Hirschfeld explains, “Corporate executives are trying to do more with less and feel tremendous pressure to find people who meet their high expectations. They may look at all the leaves available [based on this ruling] and automatically think that they'd better not put someone in a job for fear [that] the worker asks for all this time off. But corporate executives have to be careful that they don’t overreact to the decision…. Companies shouldn’t focus on the person, but on the needs of the job.”
The piece concludes with Hirschfeld speculating that the issues Sanchez v. Swissport Inc. brings up may, ultimately, be decided by the Supreme Court of California.
“This whole issue over family life interfering with the job is an important enough issue that the Supreme Court may look into it. These are the kind of cases it may want to send a message to everyone so that they know what the rules are.”
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