Failure to Accommodate Pregnancy

By James Denis

Jun. 19, 2009

Beginning in May 2004, Yaire Lopez worked as a route sales representative and delivery driver for Bimbo Bakeries USA Inc., delivering baked products to customer stores. She was required to wheel racks of up to 12 trays of goods, each weighing about 15 pounds. After she became pregnant in 2005, a nurse restricted Lopez from lifting more than 20 pounds. Less than one hour after Lopez turned in the written restriction to her supervisor, Bimbo’s human resources manager told Lopez to go home and placed her on conditional FMLA leave, even though Lopez wanted to work. Lopez was subsequently fired.

Lopez sued Bimbo in California State Court, alleging that Bimbo failed to accommodate her pregnancy and wrongfully terminated her in violation of state law. A jury awarded Lopez $2.34 million, which included an award of $2 million in punitive damages against Bimbo for the actions of the human resources manager, together with more than $1 million in attorney’s fees.

Bimbo appealed, and the court of appeal affirmed the verdict, finding that California law “requires an employer to transfer a pregnant employee to a modified position if the employer has a transfer policy for temporarily disabled employees,” provided that an open position exists.

Lopez showed that Bimbo had an interim work program for disabled employees, but had failed to accommodate her with a transfer into that program. Also, Bimbo’s human resources manager was a managing agent for purposes of punitive damages because she exercised substantial discretionary authority over “vital aspects of the corporate business and policy on a daily basis.” Lopez v. Bimbo Bakeries USA Inc., Cal. Ct. App., No. A119263, unpublished opinion (4/23/09).

Impact: Employers are advised to consider state law obligations to accommodate disabled employees due to pregnancy. If the employer has an alternative or interim work program for injured or disabled employees, state law may require the employer look into whether an open position exists for the pregnant employee under that program.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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