"Firing someone because of lactation or breast-pumping is not sex discrimination" - COTW #79

In a case that has been around the blogosphere and back again, Judge Lynn Hughes of the Southern District of Texas held that discriminating against lactating women was a-ok as a matter of law. You can read the full opinion for EEOC v. Houston Funding here, and it's the Lawffice Space employment law case of the week!

The employee in this case had a baby in December 2008. She was out of the office for about nine weeks and decided to call and let her employer know that she was ready to return. During the call, she claims she asked if she could use a back room to pump milk . . . and they fired her . . . because they discriminate against women who lactate. Can you believe it?

Frankly, I'm skeptical. The employer claims it fired her for job abandonment and actually made the decision prior to the call. During the call, they explained to her that they had filled the position because they had not heard from her. But, the EEOC brought this (what I would call) "test case" so they're giving this theory a whirl. So, far the test is not going well.

The opinion's analysis was brief and to the point:

[L]actation is not pregnancy, childbirth, or a related medical condition. She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination . . . . Even if [the employee's] claims are true, the law does not punish lactation discrimination.

And that's the end of that (until appeal).

So, can employers really discriminate against women who ask to pump milk at work? I'll offer two quick points on the subject:

1. This judge's opinion is . . . how to put this nicely . . . "conclusory." It contains no serious analysis, and I think it is possible, nay plausible, nay probable that other courts will see this matter differently.
2. "Obamacare" amended the FLSA to require reasonable break time (and a reasonable space) for nursing mothers.

This case of the week aside, I'm leaning towards "no, an employer cannot discriminate against lactating mothers," but we shall see.

There are about a quadrillion other blog posts on this topic. I'll just point you to Jon Hyman's (which itself links to many more).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.