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Court: Lactation Discrimination is Sex Discrimination, Unlawful

June 21, 2013

Last year, a federal court judge in Texas ruled that a company that had fired a woman who requested to bring her breast pump into work had been within its rights to do so. family2.jpg The court therefore granted the defendant's motion for a summary judgment, denying the plaintiff the right to sue.

Now, a federal appellate court has overturned that decision, according to the U.S. Equal Employment Opportunity Commission.

Los Angeles Employment Attorney Vincent Howard of HOWARD LAW understands this case is important because it expands the definition of gender discrimination.

Incredibly, the lower court had ruled that lactation was not pregnancy, childbirth or a "related medical condition" that could be considered protected according to gender equality rights. The EEOC had argued that lactation is, in fact, a medical condition related to pregnancy and childbirth. Argued that commission's attorney, "There are no people that we know of who lactate who haven't given birth recently."

Of course, the EEOC did not allow the lower court decision in EEOC v. Houston Funding to rest. The case was appealed to the U.S. Court of Appeals for the Fifth Circuit.

The court unanimously held that terminating a female worker because she is lactating or expressing milk is unlawful sex discrimination, as defined under Title VII of the Civil Rights act of 1964.

Specifically, the action violates the Pregnancy Discrimination Act amendment, enacted in 1978, which holds that:

  • An employer can't refuse to a higher a woman because of her pregnancy, pregnancy-related condition or because of any prejudices held by co-workers, customers or clients.
  • If an employee is temporarily unable to perform her job due to the pregnancy, the employer has to treat her the same way it would any other temporarily disabled worker. that might mean modified tasks, alternative assignments or a disability leave.
  • Employers have to hold open a job for a woman with a pregnancy-related absence for as long as they would for a worker who is on disability or sick leave.
  • Pregnancy-related benefits may not be solely extended to married workers.
  • If an employee provides any benefits to workers on leave, those same benefits have to be extended to workers for pregnancy-related conditions as well.
In this case, the worker had been employed with a debt collection firm for two years when she took a leave of absence to have a child. The company had no policy on maternity leave (a bad business move to start with). A few days after the birth, the vice president of the firm reached out to the worker to ask when she'd be returning. She responded that it would depend on doctor's advice.

The employee had undergone a caesarean section, and the surgery site had become infected.

Throughout this time, her employer had been pressing her for information on when she would come back. A decision was made to fire her when they did not receive what they considered a timely response.

However, two months later, she was cleared by her doctor to return to work. She called the company vice president the next day to say she had been cleared to work and asked if she could bring her breast pump and use the back room to express milk. It was at this time that the company informed her she had been fired, though they could not give her the exact firing date. A letter firing her was dated the same day as she contacted her employer to let him know she could return.

The commission maintains that the employer fired the worker because she wanted to pump breast milk. The company disputes that claim.

But the lower court's ruling would have made this argument null-and-void. If lactation is not a pregnancy-related condition, then it would not have protections under the law that would be grounds for litigation.

What the Fifth Circuit Court of Appeals' ruling does is make it clear that lactation IS a pregnancy-related condition, afforded rights and protections under the law.

The court took note of the biological fact that lactation is a physiological condition that is only experienced by women who have been pregnant. Because men, as a matter of biology, can not undergo pregnancy, firing a woman on the basis of lactation is unlawful sex discrimination.

Los Angeles Employment Attorney VINCENT HOWARD at HOWARD LAW can help. Call toll-free at 1-800-872-5925 or send us a message online.

Additional Resources: Fifth Circuit Holds Lactation Discrimination is Unlawful Sex Discrimination, May 31, 2013, Press Release, U.S. Equal Employment Opportunity Commission

More Blog Entries: California Discrimination Case Results in $7.5M Settlement, May 28, 2013, Los Angeles Discrimination Lawyer Blog