Lactation Discrimination Against Nursing Mother Violates Title VII

by Franczek Radelet P.C.
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Last year the United States Equal Employment Opportunity Commission published its strategic enforcement plan in which the agency identified its priorities for the years 2013 to 2016.  The EEOC listed accommodating pregnancy-related limitations as an emerging issue and a national priority on which it intended to focus.  That focus has already paid dividends for the agency in EEOC v. Houston Funding II Ltd., where the Fifth Circuit Court of Appeals held that firing a woman because she is lactating or expressing milk constitutes unlawful gender discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  The Pregnancy Discrimination Act amended Title VII to prohibit employment discrimination based on pregnancy, childbirth, or related medical conditions.

In Houston Funding, an account representative became pregnant and went out on maternity leave.  In anticipation of her return to work, the employee asked her boss if she could use her breast pump at work in the back room of the office.  The employee claimed the boss denied her request and then later told her that her position had been filled.  A few days later, the employee received a letter terminating her employment citing job abandonment.  The employee sued claiming gender discrimination under Title VII.

The trial court dismissed the case on the employer’s motion for summary judgment reasoning that lactation was not a condition related to pregnancy because it did not start until the pregnancy had ended.  Courts have generally interpreted Title VII not to require special workplace accommodations for women affected by pregnancy, childbirth, or related medical conditions and only require employers to treat women the same as other employees who may have similar limitations or inabilities to work.

On appeal, the Fifth Circuit reversed the lower court and remanded the case back for trial.  The appellate court held that lactation is a physiological condition distinct to women who have undergone pregnancy.  According to the court, firing a woman because she is lactating or expressing milk amounts to unlawful gender discrimination under Title VII and the Pregnancy Discrimination Act because an employer—as a matter of biology—could not fire a man for the same reason.

While the EEOC’s victory in Houston Funding seems like a common-sense result, it represents a significant development for the agency and its efforts to pursue pregnancy discrimination claims.  Additionally, in 2010, Congress amended the Fair Labor Standards Act to require employers with 50 or more employees to provide breaks for nursing mothers to express breast milk for one year after a child’s birth. (Although not clear from the court’s decision, the employer in Houston Funding likely had less than 50 employees.)  The amendment also requires employers to provide a private place, other than a bathroom, where nursing mothers can express breast milk.  The EEOC, however, does not enforce the FLSA and employees cannot file employment discrimination charges for alleged FLSA violations.  They would have to sue directly in court. 

Given the EEOC’s focus on pregnancy discrimination and the Fair Labor Standards Act’s requirements relating to nursing mothers, employers should tread lightly when evaluating employment issues involving pregnant employees. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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