In a rare act of limiting the reach of California’s workplace discrimination laws, an appeals court has denied pregnancy leave protection to a worker allegedly fired for taking time off for egg retrieval and freezing procedures.  Paleny v. Fireplace Products (June 27, 2024).

The Fair Employment and Housing Act  (FEHA) directs employers with at least five on payroll to provide pregnancy disability leave (PDL), transfer and/or other reasonable accommodation due to pregnancy, childbirth, or a related medical condition. A woman is “disabled by pregnancy” by a medically confirmed  (i) inability because of pregnancy to perform any one or more of her job’s essential functions without undue risk to herself, her baby, or others; or (ii) pregnancy-related suffering from severe morning sickness, required time off for prenatal or postnatal care, bed rest, gestational diabetes, or other pregnancy-related physical conditions. Emphasis supplied.  See, Pregnancy Accommodation in California  (November 15, 2018)

Erika Paleny sued her employer and supervisor for FEHA-prohibited harassment, discrimination, and retaliation after she notified management in 2018 of planned oocyte (egg) retrieval procedures to donate as well as freeze eggs for her potential but indefinite future use.

The trial judge dismissed her claim as outside FEHA/PDL protections.  The Court of Appeal has agreed, finding Ms. Paleny was not pregnant, disabled by pregnancy, nor suffering from a related medical condition. “[T]here is no evidence, nor a reasonable inference, that [Ms. Paleny] was undergoing the egg retrieval procedure because of [any pregnancy related] medical condition,” including any procedure “to become pregnant.”  … We see a distinction between a medical procedure related to possible future pregnancy and a [FEHA-protected] pregnancy-related medical condition.”

However, Ms. Paleny’s loss may be a one-off.  In response to the U.S. Supreme Court’s 2022 cancelation of constitutionally protected abortion rights, the Legislature expanded FEHA’s protections in 2023 to include “reproductive health decision making” (including, but not limited to “a decision to use or access a particular drug, device, product, or medical service for reproductive health”).

While Ms. Paleny’s chosen action might well be protected today, the disputed events were in 2018.  The appeals court found nothing making the expanded law retroactive.

Take Away:

With FEHA’s reach over reproductive decision making after 2022, “pregnancy disability protection” is too narrow a concept.  Management must place particular attention to any requested accommodation related to reproduction.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Smooth Sailing – Workplace Policy Handbook & Forms for 2024 (July 3, 2024)
• Pregnancy Disability Leave Policy (August 2, 2023)
• Attendance and Absence Policy (June 22, 2023)

Tim Bowles
July 26, 2024