Friday, June 7, 2013

Lactation Discrimination - COTW #146

In EEOC v. Houston Funding II, Ltd., the Fifth Circuit held that "lactation is a related medical condition of pregnancy for purposes of the PDA (Pregnancy Discrimination Act)." In other words, lactation discrimination is illegal. The Court reversed the district court's decision (which was Case of the Week #79).

The holding is not all that shocking, but the factual background is a little unusual:
Venters told Fleming that she was breastfeeding her child and asked him to ask Cagle 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.
So, this sounds a little bit like an accommodation case. But it's not. The Court made clear that it's decision to allow the woman to proceed with her sex discrimination claim was not an accommodation case:
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.
And, in case that wasn't clear enough, Judge Edith Jones issued a concurring opinion:
[T]his court held that the PDA does not mandate special accommodations to women because of pregnancy or related conditions. 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.
Bottom line: lactation discrimination is unlawful, but failure to accommodate is probably not.

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