Firing a woman for lactating at work is against the law

Moment’s passed, eh? Ok. Let me bring it back…

Last week, the Fifth Circuit Court of Appeals ruled (here) that discharging a female employee because she is lactating or expressing breast milk is sex discrimination and, therefore, violates Title VII of the Civil Rights Act of 1964 (Title VII).

In EEOC v. Houston Funding II, Ltd., Dominica Venters, who was recovering from a C-Section, alleged that she requested that her supervisor ask the boss if it would be possible for her to use a breast pump at work. The supervisor stated that when he posed this question to the boss, the boss “responded with a strong ‘NO. Maybe she needs to stay home longer.'”

Ms. Venters alleged that she was later told that her spot had been filled. Houston Funding alleged that Ms. Venters had abandoned her job. So, Ms. Venters alleged sex discrimination, and the U.S. Equal Employment Opportunity Commission took up the case on her behalf.

In defending, Houston Funding argued Title VII does not cover “breast pump discrimination” and moved for summary judgment. The district court granted the motion, finding that, even if Venters’ allegations were true, “[f]iring someone because of lactation or breast-pumping is not sex discrimination,” because neither is a related medical condition of pregnancy. The EEOC timely appealed.

On appeal, the Fifth Circuit began its analysis by noting that the Pregnancy Discrimination Act (PDA), which is part of Title VII, provides that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” Therefore, Title VII must “cover a far wider range of employment decisions entailing female physiology,” of which lactation is one of them. Consequently, the court easily concluded that the lower court was wrong and Ms. Venters stated a possible claim for Title VII sex discrimination.

Takeaway: Not only must employers consider their obligations under the Fair Labor Standards Act to provide nursing moms time and space to express breast milk at work, but taking action against a mom who requests to pump at work may get you discrimination lawsuit. (Although, the PDA does not require employers to affirmatively provide accommodations).

So, educate supervisors and management about these areas to avoid possible legal issues and, more importantly, treat new moms with the respect and dignity they deserve.

[Yes, I realize the irony of that last statement juxtaposed against the soundtrack for this blog post.]