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EEOC Wins Landmark Title VII Case on Breast Feeding and Lactation

The Fifth Circuit issued a landmark decision in a sex discrimination case involving breast feeding and lactation in EEOC v. Houston Funding II, Ltd. (5th Cir. May 30, 2013).  The Fifth Circuit held that discrimination based on an employee's post-childbirth lactation is prohibited by Title VII, but expressed doubt about whether, as the law existed at the time, an employer must affirmatively accommodate the employee's condition.

The plaintiff (Donnicia Venters) worked for Houston Funding as an account representative/collector.  Houston Funding was not subject to the Family and Medical Leave Act and did not have a maternity leave policy.  She took a leave of absence in December 2008 to have a baby, and wound up staying at home until February 2009.  However, problems arose when she told her employer that she needed to use a breast pump when she returned to work:

During one conversation, Venters told Fleming [her supervisor] that she was breastfeeding her child and asked him to ask Cagle [the limited partner of Houston Funding] whether it might be possible for her to use a breast pump at work. Fleming stated that when he posed this question to Cagle, Cagle “responded with a strong ‘NO. Maybe she needs to stay home longer.’”

On February 17, 2009, Venters called Cagle and told him her doctor had released her to return to work. Again, she mentioned she was lactating and asked whether she could use a back room to pump milk. After asking this question, Venters testified that there was a long pause, and when Cagle finally responded, he told her that they had filled her spot. The record reflects no denial of this conversation. On February 20, Houston Funding mailed a termination letter dated February 16 to Venters. This letter stated Venters was discharged due to job abandonment, effective February 13.

Venters then filed a charge of discrimination, and the EEOC filed suit on her behalf.  The district court (Judge Lynn Hughes in Houston) granted summary judgment against the EEOC, finding that “[f]iring someone because of lactation or breast-pumping is not sex discrimination,” and that lactation is not a related medical condition of pregnancy.

The Fifth Circuit disagreed and vacated the summary judgment.  The Fifth Circuit noted that the Pregnancy Discrimination Act amended Title VII to provide 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 . . . .”  The court held that lactation is a "related medical condition" of pregnancy:

Moreover, we hold that lactation is a related medical condition of pregnancy for purposes of the PDA. Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth. It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child.

(citation omitted).  The court concluded:

Because discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA, we find that the EEOC has stated a prima facie case of sex discrimination with a showing that Houston Funding fired Venters because she was lactating and wanted to express milk at work. The EEOC has further proffered evidence showing that Houston Funding’s stated reason for discharging Venters—i.e., job abandonment—was pretextual. There is, therefore, triable evidence from which a factfinder may conclude that Houston Funding violated Title VII by discharging Ms. Venters.

However, the court was careful to distinguish prior cases in which courts had ruled that employers are not required to offer special accommodations to lactating employees:

The issue here is not whether Venters was entitled to special accommodations—at the time, she was not entitled to special accommodations under Title VII—but, rather, whether Houston Funding took an adverse employment action against her, namely, discharging her, because she was lactating and expressing breast milk.

Instead, the court emphasized that Venters was fired merely because she asked whether she could use a breast pump:

The record before us reflects that Venters asked Cagle whether she would be permitted to use a breast pump while at work. The record also shows that Cagle demonstrated hostility toward such an accommodation. In its motion for summary judgment, Houston Funding contended Venters was fired because she inquired about whether she would be allowed to use a breast pump. Simply posing this question is not alleged to be a terminable offense. But nothing in this opinion should be interpreted as precluding an employer’s defense that it fired an employee because that employee demanded accommodations. Houston Funding, however, apparently contends Venters was discharged for job abandonment, so it is uncertain whether this issue will arise in this case, if and when it is tried.

In a concurring opinion, Judge Edith Jones emphasized this distinction:

It follows that if Venters intended to request special facilities or down time during work to pump or “express” breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit. Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing
her baby to the office to breastfeed during the workday.

As both the majority and the concurrence hinted, the law has changed since 2009 with respect to an employer's obligation to accommodate lactation.  The Patient Protection and Affordable Care Act (commonly known as Obamacare) amended the Fair Labor Standards Act to require an employer to provide break time for an employee to "express breast milk."  The Department of Labor has issued a fact sheet discussing this change in the law.

But even prior to the change in the law, an employer was obligated to treat pregnant employees and non-pregnant employees the same way.  If an employer had allowed break time to non-pregnant employees due to disabilities unrelated to pregnancy (for example, to accommodate a back injury), a pregnant (or, as in this case, post-pregnant) employee could always argue that the employer was obligated to provide a similar accommodation.  However, that issue was not addressed by the Fifth Circuit because the stated reason for termination was job abandonment, not a demand for an accommodation.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes