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FEHA allows terminating pregnant employee if there is absolutely no way to accommodate

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Pregnant employees are protected from discrimination under the California Fair Employment and Housing Act (FEHA). That means employers have an obligation to reasonably accommodate pregnant employees so they can continue to perform the essential functions of their jobs.

But that obligation has limits, as the following case shows.

Recent case: Dianna Orozco worked as dental assistant in a small but busy dental office. Her job included taking patient X-rays. In fact, she spent about 50% of her time doing so.

Then she became pregnant and informed her employer that she didn’t feel it was safe for her to take X-rays because of potential fetal exposure to radiation. Her employer then looked at all its employees and discovered that there wasn’t anyone certified to whom it could temporarily delegate the X-ray task.

The dental practice then terminated Orozco, explaining it was doing so because it was unable to accommodate her request. She sued, alleging FEHA violations.

But the Court of Appeal of California said the practice wasn’t required to accommodate her when there was no reasonable way to do so and still have her perform the essential functions of her job.

It said the law was clear: No employer is required to create additional employment that the employer would not otherwise have created, nor must the employer discharge other employees to accommodate a pregnant employee, transfer an employee with more seniority or promote any employee as an accommodation. (Orozco v. Coser, No. B214292, Court of Appeal of California, 2nd Appellate Division, 2009)

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