Ladies: Lactate Away at Work!

breast pumpA recent ruling out of the fifth circuit court of appeals now offers protection to mothers in the workplace who lactate or express milk after pregnancy.  Furthermore, discrimination by an employer who materially alters the terms or conditions of a female employee’s employment constitutes a cause of action for sex discrimination under Title VII of the Civil Rights Act of 1964.  It would also violate the Pregnancy Discrimination Act which amended Title VII by broadening sex discrimination to include “pregnancy, childbirth, and related medical conditions.”  The Court clearly articulated such protection to expand beyond pregnancy and child birth as mothers are protected against discrimination for medical conditions related to child birth.  Lactation was deemed to be a medical condition related to childbirth.

This case, EEOC v. Houston Funding II, involved a mother who in 2008 was on medical leave for the birth of her child.  The employee inquired of her supervisor as to whether she could use a breast pump at work during her breaks.  The supervisor referred the inquiry to the limited partner Harry Cagle.  Mr. Cagle responded “No. Maybe she needs to stay home longer.”  Upon release by her doctor to return to work, the employee called Mr. Cagle on February 17, 2009 to notify him of the same.  Mr. Cagle took a long pause and subsequently informed her that her position had been filled.  On February 20, 2009, the company mailed a letter dated February 16, 2009 that she had been terminated for abandoning her job.

The EEOC filed a lawsuit on the employee’s behalf and the company asserted that breast pump discrimination is not prohibited by Title VII of the Civil Rights Act of 1964 or it’s subsequent amendments.  The federal trial court said that “lactation is not pregnancy, childbirth, or a related medical condition,” and thus decided that “firing someone because of lactation or breast-pumping is not sex discrimination.  The fifth circuit court of appeals responded that it is a related medical condition protected by Title VII.  The EEOC noted the following about the decision:

“The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits.”

The Patient Protection and Affordable Care Act provides additional protections by amending the Fair Labor Standards Act requiring employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  This includes providing a private space not to include a restroom.  Thus, employers who discriminate against lactating female employees have exposure to liability under Title VII and FLSA.

About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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