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Termination for Lactation is Discrimination

The Fifth Circuit recently held that discrimination against a woman who is lactating or expressing breast milk constitutes a violation of Title VII and the Pregnancy Discrimination Act (PDA). The court found that lactation is a medical condition related to pregnancy for purposes of the PDA, and a woman who suffers an adverse employment action as a result of lactation or expressing breast milk has a cognizable claim for gender discrimination.

In the lawsuit of EEOC v. Houston Funding II, the plaintiff, who worked for an employer with fewer than fifty employees and no maternity leave policy, took a leave of absence to have her baby. While on leave, the plaintiff regularly contacted her supervisor to inform him of her status. During one of these conversations, she asked whether it would be possible for her to use a breast pump at work. When her supervisor then asked a higher-level supervisor, he responded with: “No. Maybe she needs to stay home longer.”

When the plaintiff’s doctor released her to return to work, she called her employer. She again asked whether she could use a back room to pump milk upon her return. Her employer then informed her that it had filled her spot and that she was discharged due to job abandonment. The EEOC brought a claim on the plaintiff’s behalf.

The District Court granted summary judgment for the employer but the Fifth Circuit reversed and sent the case back to court for trial.
This is an important decision for all employers, not just those within the Fifth Circuit. Even if an employer does not have fifty employees and is not required to provide Family and Medical Leave, female employees will have a cause of action if they suffer an adverse employment action (e.g., demotion or discharge) because they are lactating or expressing breast milk. Further development of this topic can be found in Bingham Greenebaum Doll’s July 2013 newsletter. If you need assistance or advice regarding employment policies or practices, please contact one of the lawyers in our Labor and Employment Practice Group.




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