Categories: Retail

by Christina J. Fletcher

As further evidence of the Equal Employment Opportunity Commission’s (“EEOC”) focus on “caregiver” discrimination, the EEOC has signaled its strong support for protecting working women from discrimination based on lactation or breastfeeding in a case now pending before the U.S. Court of Appeals for the Fifth Circuit.

The EEOC maintains that discriminating against a woman for lactation or breast pumping is prohibited sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended by the Pregnancy Discrimination Act (“PDA”).  For example, in EEOC v. Houston Funding II Ltd. et al., the EEOC filed suit on behalf of an employee who allegedly was terminated after she asked her employer if she could use a breast pump to express milk in the workplace when she returned from maternity leave.  The district court granted summary judgment for the employer, holding that Title VII does not cover lactation and breast pumping because “pregnancy, childbirth and related medical conditions,” which are covered by Title VII pursuant to the PDA, ended on the day of birth.  In the view of the district court, firing an employee because of lactation or breast pumping after childbirth is not sex discrimination under Title VII.  Thus, even if the EEOC could prove the employee was terminated for her request to use a breast pump at work, she had no claim under Title VII as amended by the PDA.

The EEOC vehemently disagrees with the position taken by the district court and has appealed the decision to the Fifth Circuit.  The EEOC argues that “lactation discrimination” violates the PDA because lactation is a medical condition related to pregnancy.  Separately, the EEOC maintains that disparate treatment on the basis of breastfeeding, an inherently female function, constitutes “the essence of sex discrimination” under Title VII.  As stated in the EEOC’s appellate brief, “[l]actation is a female-specific function.  Thus, firing a female worker because she is lactating (i.e., producing and/or expressing breast milk) imposes a burden on that female worker that a comparable male employee simply could never suffer. That is the essence of sex discrimination.”

Interestingly, physicians and health experts, including the Texas Medical Association, have filed an amicus brief in support of the EEOC’s position that breastfeeding is protected under the PDA and Title VII.  The amicus brief noted that lactation itself is a medical condition caused by pregnancy and childbirth, and is thus a “related medical condition” under the statues.  The amicus brief further noted that nursing provides health benefits to both mother and infant.

It is too soon to tell either what the outcome of the EEOC’s appeal to the Fifth Circuit will be, or what the impact to employers may be from the EEOC’s focus on breastfeeding bias as part of its greater “caregiver discrimination” initiative.  For now, employers should keep this issue in mind with regard to women returning to work from maternity leave, review any related policies and procedures, and consider the suggestions outlined in the EEOC’s caregiver best practices guide.

Beyond the EEOC

While the EEOC is focused on prohibiting discrimination with regard to lactation, there are federal protections enforced by the U.S. Department of Labor that require employers to provide breaks for expressing milk in the workplace.  In 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require employers to provide non-exempt employees with “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.”  Employers are also “required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which can be used by employees to express breast milk.”

In addition to the federal protections afforded female workers who breastfeed, over 20 states have enacted laws protecting breastfeeding mothers.  For example, in New York, employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for women to do so.  Unlike federal law, New York’s law extends to exempt workers, as well as non-exempt employees.  New York’s law also protects lactating women from discrimination by barring employers from “discriminat[ing] in any way against an employee who chooses to express breast milk in  the  work place.”  N.Y. Labor Law § 206-c.   Employers should ensure that they are aware of, and in compliance with, the different state laws regarding breastfeeding that may apply to their workforce.

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