Protection from Pregnancy Discrimination Expands as Fifth Circuit Court of Appeals Determines Lactation Discrimination is Unlawful Sex Discrimination

In a recent opinion, the Fifth Circuit Court of Appeals has ruled that an employer’s decision to terminate a woman because she is lactating or expressing milk constitutes an actionable form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).

The case, EEOC v. Houston Funding, II, involved a mother who, in December of 2008, took leave from work for the birth of her child.   Before returning to work, the mother advised her supervisor that she was breastfeeding and asked whether it would be possible for her to use a breast pump at work.  The supervisor, in turn, posed the question to Harry Cagle, the company’s Limited Partner.  Mr. Cagle responded with, “No.  Maybe she needs to stay home longer.”

On February 17, 2009, the employee called Mr. Cagle to report that she had been medically cleared to return to work.  During this same conversation, she again mentioned that she was lactating and asked whether she could use a back room to pump milk.  According to the employee, Mr. Cagle paused at length before responding that her position had been filled.  On February 20, 2009, the company mailed a letter, dated February 16, 2009, to the employee stating that she had been terminated for abandoning her job.

The EEOC filed a Title VII lawsuit against Houston Funding alleging that it had discriminated against the employee, based on her sex, including her pregnancy and childbirth, by terminating her employment.  Houston Funding moved for summary judgment on grounds that Title VII does not prohibit “breast pump discrimination.”  The District Court for the Southern District of Texas granted the motion, finding that firing a person because of lactation or breast pumping is not sex discrimination.

The Fifth Circuit Court of Appeals reversed the District Court.  In so doing, the Court pointed to the Pregnancy Discrimination Act, which amended Title VII to make clear that sex discrimination includes “pregnancy, childbirth, or related medical conditions.”  The Court then concluded that lactation is a medical condition related to childbirth.  The Court also held that terminating a woman because she is lactating or expressing milk states a cognizable Title VII cause of action.  Without detailed discussion, the Court additionally concluded that ample evidence had been produced for finding the employer’s offered reason for the termination pretextual.  Consequently, the lower court ruling was vacated and the case remanded to the District Court.

The ruling sends a clear message that protection from pregnancy discrimination expands beyond the period of pregnancy and childbirth.  Women are equally protected from discrimination on the basis of medical conditions related to childbirth.

Finally, it should be noted that the Patient Protection and Affordable Care Act (“PPACA”), which was signed into law on March 23, 2010, added still additional statutory protections to breastfeeding mothers.  It did so by amending the Fair Labor Standards Act to require covered employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  Consequently, an employer who discriminates against a woman for expressing milk in the workplace today would face potential exposure under both the FLSA and Title VII.

As the above case law and statutory developments reflect, pregnancy and its aftermath continue to present significant legal issues in the workplace.  If you are confronting uncertainty with respect to legal rights and/or obligations arising from a current or recent pregnancy, you should contact experienced legal counsel for assistance.