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Lactation rights: Appeals court slaps down denial of discrimination claim

June 11, 2013

Article courtesy of SBAM Approved Partner ASE

By Joe DeSantis

Firing a new mother because she asked for break time to express breast milk is indeed sex discrimination under the Pregnancy Discrimination Act of 1978.

The EEOC sued Houston Funding II in Houston, Texas on behalf of Donnica Venters, an employee who had recently given birth. While out on leave, she asked her employer to provide her regular break time, once she came back, in order to express breast milk. After Ms. Venters made her request, the company fired her.

In the District court the employer-defendant moved for Summary Judgment, arguing that “Breast Pump Discrimination” was not covered under Title VII (which was amended by the Pregnancy Discrimination Act). Surprisingly, Judge Lynn N. Hughes granted Houston Funding’s motion and dismissed the suit. Judge Hughes said in part, “. . . lactation is not pregnancy, childbirth, or a related medical condition.” Thus, he said, “firing someone because of lactation or breast-pumping is not sex discrimination.”

Not surprisingly, Judge Hughes’ decision became somewhat notorious in employment law circles, and the EEOC, also not surprisingly, appealed the case.

The Fifth Circuit pointedly reversed Judge Hughes, noting first that Title VII protects working women against discrimination on the basis of pregnancy, childbirth, or a related medical condition (italics added). The appeals court then said:

Lactation is a 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.

In a press release the EEOC said:

We are gratified that the Fifth Circuit gave plain meaning to the words of the Pregnancy Discrimination Act and ruled in our favor that discrimination on the basis of lactation is discrimination on the basis of sex.
Although the Fifth Circuit did not rule on the merits of the actual case (it went back to the district level to be tried on its merits), it would appear that the decision has laid the question of the legal relationship between pregnancy and lactation to rest once and for all.

Employers must practically apply the requirements and protections of the Pregnancy Discrimination Act as they apply to lactation rights. For them, it is important to understand that both the Fair Labor Standards Act (FLSA) and the Affordable Care Act (aka Obamacare) also come into play when they establish their practices.

For employers with employees subject to the FLSA, the employer must provide “ . . . reasonable break time for an (a non-exempt) employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Although it does not define how much time is “reasonable,” neither does it place any limit on how many breaks the employer must provide. It notes that both frequency and duration of the breaks will vary from mother to mother.

As with traditional work breaks, the FLSA does not require the employer to provide paid lactation breaks, unless the employer already provides paid work breaks.

There is an “Undue Hardship” exception to the FLSA’s requirements, for employers with fewer than 50 employees who can also show that providing a room for lactation would cause an undue hardship, typically an economic one. Employers who think they might be able to claim the exception would be wise to consult with an employment law attorney before doing so.

The Affordable Care Act also weighs in on employee lactation rights. ACA requires employers not subject to the exception (above) to provide, at minimum, a private space with a locking door, a table, a chair, and an electrical outlet. Both the ACA and FLSA make it clear that an employee rest room cannot be a lactation room.

Neither the ACA nor the FLSA supersede any state law that might provide greater protections than they provide.

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