New Developments Surrounding Lactation Discrimination

by Morgan Lewis

New case law and statutory changes increase litigation and liability risk for employers that fail to comply with both federal and state lactation break laws.

When the Patient Protection and Affordable Care Act (ACA) was signed into law in 2010, we reported on a provision of the law that amended the Fair Labor Standards Act (FLSA) to require that covered employers offer unpaid lactation breaks to nursing mothers.[1] Employers should be aware of several new developments, which are summarized below.

Sex Discrimination Claims Under Title VII

On May 30, the U.S. Court of Appeals for the Fifth Circuit gave a boost to the Equal Employment Opportunity Commission's (EEOC's) position that lactation discrimination is a form of sex discrimination under Title VII by overturning a summary judgment victory for an employer in the district court. The decision represents a new direction for federal law and a potential new cause of action for employees denied the opportunity to express breast milk in the workplace.

In EEOC v. Houston Funding, an employee had a baby and then requested lactation space as part of negotiating her return to work. The employer rejected her request and suggested that the employee should continue to stay at home. She did stay home, and the company terminated her for job abandonment. The EEOC sued on the employee's behalf, and the U.S. District Court for the Southern District of Texas granted summary judgment to the employer, holding that the employee had no claim under Title VII because lactation was not a medical condition related to pregnancy.[2]

The EEOC appealed to the Fifth Circuit, which reversed, remanded, and ordered the employer to pay the plaintiff's costs for appeal.[3] The Fifth Circuit engaged in a plain-meaning analysis of the statutorily undefined term "medical condition," noting that lactation is a physiological process caused by hormonal changes associated with pregnancy and childbirth. Ultimately, the court held, for the first time, that discrimination on the basis of lactation is pregnancy discrimination protected by Title VII.

Notably, the employee's request in Houston Funding was made before the enactment of section 207(r) of the FLSA, which requires that an employer provide a private space to express breast milk.

The Fifth Circuit's holding represents a new split in authority, as all other federal courts and many state courts that have considered lactation issues in the context of Title VII have previously maintained that lactation is not a medical condition related to pregnancy. Notably, the U.S. Court of the Appeals for the Eighth Circuit has an appeal pending on the same issue, and the district court in that case relied on the district court's now-reversed opinion in Houston Funding.

Other Causes of Action Under the FLSA and ACA Amendments

The litigation landscape under the FLSA remains murky because the lactation breaks provision in section 207(r) does not have an explicit cause of action for break time, only for wage violations. Accordingly, the first district court to decide an FLSA lactation break claim, held, in an unpublished opinion, that a private cause of action might exist for retaliation claims related to lactation breaks under 29 U.S.C. § 215 but that enforcement actions for direct violations of the lactation breaks provision at section 207(r) were the province of the DOL.[4] However, a recent decision by the U.S. Court of Appeals for the Eleventh Circuit ruled on the merits of both a section 207(r) lactation breaks claim and a section 215 retaliation claim,[5] without addressing the issue of a private cause of action.

Additionally, there is another amendment to the FLSA that may affect litigation of the lactation breaks requirement. The ACA amended the FLSA to add 29 U.S.C. § 218c—the ACA's retaliation provisions. The text of this section purports to protect employees from discrimination or discharge for a long list of activities related to potential employer violations of any amendment created by the ACA. The lactation breaks provision of the FLSA is seemingly one such amendment, but no court has ruled as to whether section 218c creates a separate remedy for a lactation breaks violation.

What Employers Should Do

The risk associated with an employer's failure to accommodate a nursing employee is increasing. Recent litigation suggests that a noncompliant employer may face many different causes of action for such infractions, including (1) a cause of action under the sex discrimination provisions of Title VII, (2) a separate cause of action under the lactation provision of the FLSA, and (3) claims under the retaliation provisions of either law if the employee made a complaint followed by adverse employment action. That does not include the possible actions under a maze of state and local laws that protect similar conduct, especially as states begin to pass laws making it explicit that breastfeeding is protected conduct and/or that pregnancy-related conditions must be accommodated by employers.[6]

Ultimately, noncompliant employers could be forced to defend FLSA claims and weave through the EEOC administrative exhaustion requirements on the same set of facts. This compounds the risk of compensatory and punitive damages and fees as well as the risk of systemic litigation.

Appropriate planning can help mitigate this risk, however. Employers should review their policies to ensure that they are compliant with federal and relevant state law protections, which can be more expansive than the federal requirement. The DOL has reported that, for the first two years the lactation breaks amendment to the FLSA was in effect, it conducted 54 investigations and found 36 violations, the great majority of which related to employers' failure to provide a private space for lactation breaks. In addition to preparing to make appropriate spaces available, employers may benefit from offering training aimed at creating a culture friendly to nursing mothers. At least one case and one $200,000 settlement of a complaint involved lactating employees alleging that they were subjected to video surveillance while pumping. In the end, as case law continues to emerge in this area, it is clear that employers can decrease risk by establishing open lines of communication with employees to develop practical solutions to both issues of legal compliance and the employer's business needs.

Additionally, employers should carefully consider whether lactation breaks should be paid or unpaid. Although nonexempt employees are only entitled to unpaid lactation break time, the DOL has been clear that, when an employer offers compensated break time (typically 20 minutes or less), the employer must pay an employee who uses that time to express milk in the same manner as other employees and that an employee must be completely relieved from duty before a break can be unpaid.[7] Further, employers should be mindful that, although exempt employees are not technically covered by the lactation protections in section 207(r), employers may lose the right to claim that an employee is exempt by engaging in an actual practice of improper deductions from salary[8] and should, therefore, consider adopting a universal lactation break program.

[1]. For more information on unpaid lactation breaks, see our April 7, 2010 LawFlash, "Healthcare Reform Law Requires Reasonable Break Times and Locations for Nursing Mothers," available here. For an analysis of the requirements of the law, the informal guidance published by the Department of Labor (DOL), analogous and related state lactation leave and breastfeeding laws, and counseling notes for employers, see our article, "Lactation Breaks in the Workplace: What Employers Need to Know About the Nursing Mothers Amendment to the FLSA," available here.

[2]. EEOC v. Houston Funding II, Ltd., No. H-11-2442, 2012 WL 739494, at *1-2 (S.D. Tex. Feb. 2, 2012) (holding that all pregnancy-related medical conditions "ended" the day the employee gave birth).

[3]. EEOC v. Houston Funding II, Ltd., --- F.3d ----, 2013 WL 2360114, at *3 (5th Cir. May 30, 2013). At the time of publication, the employer had not filed a motion for rehearing.

[4]. Salz v. Casey's Mktg. Co., No. 11-CV-3055-DEO, 2012 WL 2952998, at *7 (N.D. Iowa July 19, 2012).

[5]. Miller v. Roche Sur. & Cas. Co., 502 F. App'x 891 (11th Cir. 2012).

[6]. For more information, see our December 28, 2012 LawFlash, "New California Disability Regulations to Become Effective December 30," available here, and our October 3, 2012 LawFlash, "Another New Wave of Employment Laws in California," available here.

[7]. See DOL FAQs here.

[8]. See DOL Fact Sheet 17g here.

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.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.