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Lactation Discrimination


It occurs in more ways than one. But it's always unlawful. For instance, your employer can not fire you simply because you are pregnant or need to take time off to have a child. However, the Pregnancy Discrimination Act includes broader protection than some may realize. The boundaries of those protections were tested recently in a Fifth Circuit Court of Appeals case, and the result was a clear victory for women in the workplace.

The EEOC's Lactation Lawsuit Is Allowed to Go Forward

This unique case began when a new mother, Donnica Venters, was terminated from her job at Houston Funding II, LLC, after having her baby. When she first returned to work, she asked her employer about making arrangements to be able to pump her breast milk while at work. In the EEOC's lawsuit, it was alleged that her termination, based on this simple request, was plainly unlawful sex discrimination.

However, the Texas District Court dismissed the case, deciding that "lactation is not pregnancy, childbirth, or a related medical condition." The EEOC appealed this decision raising the novel issue of whether terminating a women because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII. The Fifth Circuit Court of Appeals determined that it does.

What does the Pregnancy Discrimination Act cover?

The Pregnancy Discrimination Act was passed in 1978 to protect women in the workplace from discrimination on the basis of "pregnancy, childbirth or a related medical condition." The Pregnancy Discrimination Act also requires that employers treat pregnant employees at least as well as they treat comparably-disabled employees, with respect to leave, insurance and other benefits.

In Venters' case, she did not allege that she was refused a reasonable accommodation to pump breast milk, but that she was fired just for asking to pump breast milk at work. The Texas federal judge dismissed her pregnancy discrimination claim based on the following reasoning:

Discrimination because of pregnancy, childbirth, or a related medical condition is illegal. Related conditions may include cramping, dizziness, and nausea while pregnant. Even if the company's claim that [Venters] was fired for abandonment is meant to hide the real reason—she wanted to pump breast milk—lactation is not pregnancy, childbirth, or a related medical condition. She gave birth on December 11, 2009. After that day, she was no longer pregnant and her pregnancy-related conditions ended.

However, the Fifth Circuit disagreed, noting that lactation is a physiological condition that is entirely distinct to women who have been through pregnancy. Logically, under Title VII and the Pregnancy Discrimination Act, terminating a woman because she is lactating is unlawful sex discrimination because it is particular to women.

What does this mean for women in the workplace?

When you consider this recent decision, along with the Fair Labor Standards recent amendment requiring covered employers to accommodate lactating mothers by providing a reasonable break time for an employee to pump breast milk, and an appropriate space to do so, it is apparent that mothers in the workplace are protected from various forms of sex and pregnancy discrimination. If you believe you have been a victim of sex or pregnancy discrimination in the workplace, we would be happy to answer any questions you may have and assist you any way we can.

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