Can't Fire Employee for Lactating, 5th Circuit Confirms

By Brett Snider, Esq. on June 10, 2013 | Last updated on March 21, 2019

Under Title VII, a woman should not be fired for expressing breast milk or lactating, a stance now confirmed by the Fifth Circuit in their EEOC v. Houston Funding II, Ltd. opinion, filed in late May.

The Court found that firing Donnicia Venters for wishing to pump her breast milk at work was ultimately sex discrimination, which may help bridge the last four decades since the Pregnancy Discrimination Act (PDA) of 1978.

Pregnancy Discrimination

Congress had amended Title VII in 1978 to encompass pregnancy and all “related medical conditions,” but in their shortsightedness, they forgot to explicitly add “lactation.”

Although it seems like a no-brainer that lactation would be a condition that naturally flows from pregnancy, no binding case law has explicitly stated that Title VII covers expressing breast milk.

Some Federal Accommodations

The Fair Labor Standards Act nearly addressed the issue, by allowing women, with some exception, a reasonable break to express breast milk for a child up to 1 year after birth. If an employee files a complaint for FLSA breastfeeding accommodations and is either retaliated against or terminated based on their complaint, they have a cause of action against the employer under 29 USC 215(a)(3).

These protections were instituted under the Affordable Care Act of 2010, which may explain why the judiciary has been so slow to move on enforcing them.

Venters was fired shortly after taking leave to care for her new child, and although the company was too small to be considered under the Family Medical Leave Act, the court felt that terminating someone for needing to express breast milk at work was illegal discrimination under Title VII.

The Court considered that the Pregnancy Discrimination Act (PDA) has been held to protect discrimination of female physiology on many levels, including disapproving of a policy which required pregnant employees to sustain a normal menstrual cycle before returning to work.

Secreting breast milk, with some tiny exceptions, is a condition borne by female employees only, and after thumbing through a medical dictionary, the Houston Funding Court decided that, like menstruation, it indeed was a medical condition associated with pregnancy.

With conditions like lactation finally considered as conditions “related to pregnancy,” it appears that Title VII (in conjunction with the PDA) has some teeth for women in the workplace.

Future Breastfeeding Cases

Although this decision isn’t exactly on point with breastfeeding in the workplace, the necessary groundwork for medical conditions under the PDA may now be set for a future court to decide a workplace breastfeeding case.

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