Lactation Discrimination Constitutes Sex Discrimination in Violation of Title VII

On May 31, 2013, in EEOC v. Houston Funding II LLC, the Fifth Circuit Court of Appeals held that terminating an employee because she is lactating and breast pumping milk constitutes unlawful discrimination in violation of Title VII.
In this case, an employee, Ms. Venters, took a leave of absence after giving birth. Before her return to work she asked whether it might be possible for her to use her breast pump at work but her employer said “no” and soon after terminated her employment.
The district Court granted the Defendant’s summary judgment stating “firing someone because of lactation or breast-pumping is not sex discrimination”.

The Pregnancy Discrimination Act (PDA) provides that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” Congress passed the PDA to protect working women against discrimination on the basis of pregnancy, childbirth or a related medical condition. The Fifth Circuit Court of Appeals decided that breast-pumping was part of the definition of a medical condition because “lactation is a physiological result of being pregnant and bearing a child”. The court emphasized the fact that the PDA does not define the statutory term “medical condition” and as a result it should be given its plain meaning, which would include “any physiological condition”. Thereafter, the Court concluded that it would be difficult to justify how this definition “could not encompass lactation”.

The Court concluded that lactating or expressing milk states a cognizable Title VII sex discrimination claim and “an adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not–indeed, could not–suffer.” Therefore the EEOC stated a prima facie case of sex discrimination showing that Ms. Venters was terminated because she was lactating and wanted to express milk at work. The Fifth Circuit affirmed the EEOC’s position that the PDA should be given a broad interpretation.

One of the questions arising from this case is whether employers will be required to provide a reasonable accommodation to female employees who want order to breast-pump at work.

It should be noted that additional protections are available to breastfeeding female employees at the workplace. The Patient Protection and Affordable Care Act, which amended Section 7 of the Fair Labour Standards Act (“FLSA”), requires employers to provide reasonable break time for employees to express breast milk for nursing children for one year after a child’s birth. The Act also requires employers “to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which can be used by employees to express breast milk.” More details about this requirements can be found at the Department of Labour website here.

If you are a female employee who is being discriminated against for lactating and breast pumping milk at work, please contact The Harman Firm, LLP.

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