The Fifth Circuit of Appeals issued a landmark decision in In EEOC v. Houston Funding II, Ltd., finding that terminating a female employee because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act. Most importantly, the Court also found that lactation is a medical condition related to pregnancy.
Ms. Donnica Venters took a leave of absence from her employment with Houston Funding II, Ltd. to give birth. Following the delivery of her child she asked her supervisor whether she could use a breast pump at work. Here is where things got stupid. Instead of responding to her inquiry, the company fired her for job abandonment.
Ms. Venters filed a complaint with the EEOC which subsequently filed suit claiming that Houston Funding discriminated against Venters based on her sex, including her pregnancy, childbirth, or related medical conditions (citing the language from the PDA). The Fifth Circuit agreed that terminating Venters simply because she is lactating or expressing breast milk constitutes sex discrimination, and that an adverse action “motivated by these factors clearly imposes upon women a burden that male employees need not – – indeed, could not – suffer.”
Jane Kodarkovsky of Genova Burns Giantomasi Webster writing for JDSupra does an excellent job of detailing the Court’s logic.
The Fifth Circuit held that lactation is a physiological condition distinct to women who have undergone pregnancy and childbirth, and that men, as a matter of biological fact, cannot lactate. As such, the Court held that lactation is included in the term “pregnancy related conditions” and protected by Title VII and the PDA. Female employees, who are lactating and/or breast-feeding, may now bring claims under Title VII and the PDA.
Employers should remember that the Affordable Care Act already amended the Fair Labor Standards Act (FLSA) to require an employer provide “reasonable time for an employee to express milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers must take their obligation to provide time and space to express breast milk seriously and must also take caution when considering taking adverse action against such employees. The EEOC has made pregnancy- related limitations one of its six national priorities to address in the context of equal employment law, so employers should critically analyze any request or inquiry from employees regarding pregnancy or post-pregnancy accommodations to avoid unnecessary negative liability.