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'Great Texas Lactation Case' Debates Whether Breast-Milk Pumping Is a Pregnancy-Related Condition

August 23, 2012
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Although Congress amended Title VII nearly 25 years ago to ban pregnancy discrimination, the question of whether the law protects breast-feeding mothers has been unclear. The author of a legal journal article called it an "employment law quagmire."

"[P]rivate employers face uncertain and inconsistent guidance on how to avoid litigation by lactating employees," Hilary Von Rohr concluded.

But that could be about to change because of what has been dubbed "The Great Texas Lactation Case." In February, a federal judge ruled that a Houston mother could not sue a debt collection agency for firing her after she asked if she could use a back room to pump breast milk. She alleged sex discrimination. "Firing someone because of lactation or breast-pumping is not sex discrimination," U.S. District Judge Lynn N. Hughes said in the case of Donnicia Venters, who is represented by the Equal Employment Opportunity Commission.

The commission has appealed the ruling to the 5th U.S. Circuit Court of Appeals in New Orleans, arguing that "firing a female worker because she is lactating ... imposes a burden on that female worker that a comparable male employee simply could never suffer. That is the essence of sex discrimination." It also says Venters' former employer, Houston Funding in Houston, violated the Pregnancy Discrimination Act of 1978.

Employment law experts believe the case could have a significant impact on how employers accommodate the needs of new mothers. The 5th Circuit "could be the first circuit court to find lactation discrimination unlawful under Title VII," says Emily Martin, vice president and general counsel at the National Women's Law Center in Washington.

Martin and others say that finding lactation discrimination illegal would bring federal law into line with such states as California, where the Department of Fair Employment and Housing now lists lactation as a pregnancy-related condition in its regulations. California already has the country's toughest anti-discrimination pregnancy laws.

At the federal level, Title VII prohibits an employer from discriminating "because of ... sex." The Pregnancy Discrimination Act amended the law to clarify that "because of ... sex" includes "because of ... pregnancy, childbirth or medical, or related medical conditions." In 2010, the Obama administration's health care reform law amended the Fair Labor Standards Act to require employers to provide reasonable break time for an employee to pump breast milk for her nursing child for one year after the child's birth.

But some employers are still "pretty ignorant of the laws that are out there," Diana Hoover, a partner at the law firm Hoover Kernell in Houston. "They don't understand that they have a duty not to discriminate against women who are pregnant or new mothers." Additionally, she says, "There are a lot of very socially conservative employers who may be uncomfortable addressing questions that are more personal in nature."

Venters, who started working for Houston Funding in 2006, gave birth to a girl in December 2008, according to the lawsuit. While still on maternity leave, she called the company president, Harry Cagle, to schedule her return to work and request use of a back room for breast pumping.

"[W]hile Cagle had been friendly at the beginning of the call, he paused for several seconds after she mentioned the breast pump, and then stated, 'well, we filled your spot,'" the EEOC said in the lawsuit. Nine days later, on Feb. 26, 2009, she received a termination letter.

Because Venters was fired before the Patient Protection and Affordable Care Act became law, the EEOC sued Houston Funding only for violating Title VII's ban on sex discrimination and the Pregnancy Discrimination Act.

In his ruling, Hughes agreed with Houston Funding that lactation is not "pregnancy, childbirth or a related medical condition." After Venters gave birth, "she was no longer pregnant and her pregnancy-related conditions ended," he wrote.

Martin, of the National Women's Law Center, says the judge erred in limiting "pregnancy-related conditions" to those occurring before the birth of a child. "The U.S. Supreme Court has ruled that [Title VII applies to] the capacity to become pregnant," she says. By the same logic, she argues, it should apply to post-birth conditions that relate to motherhood.

The EEOC's appeal is being supported by the Texas Medical Association and the Texas Pediatric Society. " '[R]elated medical conditions' includes all pregnancy and childbirth associated conditions relating to the study or practice of medicine," they argue in an amicus brief. "Since the yielding of milk by mammary glands is a medical condition caused by pregnancy and childbirth, lactation is a 'related medical condition' as contemplated by Title VII."

Whether lactation merits Title VII protection, experts say employers must at the very least make sure they comply with the new Fair Labor Standards Act rule. "Regardless of what the 5th Circuit decides, employers ignore that at their peril," Martin warns.

Matthew Heller is a writer based in Los Angeles. Comment below or email editors@workforce.com.

Workforce Management, October 2012, p. 6 -- Subscribe Now!

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