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Lactation Discrimination Equals Pregnancy Discrimination

Because men cannot lactate, it is discriminatory to deny an employee's lactation request, because such a denial would necessarily treat women (or, more specifically, child-bearing women) differently than men.

June 3, 2013
Related Topics: FLSA, Discrimination and EEOC Compliance, Policies and Procedures, Legal
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Last February I reported on EEOC v. Houston Funding, in which a Texas district court held that an employee, fired after asking to pump breast milk at work, could not go forward with her pregnancy discrimination claim. The court reasoned that because lactation does not start until after pregnancy, it is not a condition "related to" pregnancy, and therefore the Pregnancy Discrimination Act amendment to Title VII do not protect lactation as sex discrimination.

At the time, I urged everyone not to overreact to one anomalous decision:

[T]he last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination. ...

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that ... Title VII's prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate.

Late last week, the 5th Circuit agreed, and reversed the district court's decision dismissing the case. Specifically, the court held that lactation is a medical condition related to pregnancy because it is a "physiological result of being pregnant and bearing a child." In reaching this conclusion, the court analogized lactation to other physiological changes women undergo during and immediately after pregnancy:

Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly after the pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman's post-pregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of "pregnancy, childbirth, or related medical conditions."

To simplify matters, because men cannot lactate, it is discriminatory to deny an employee's lactation request, because such a denial would necessarily treat women (or, more specifically, child-bearing women) differently than men.

When you couple this decision with the FLSA's recent amendment that require employers to accommodate workplace lactation needs, it is more clear than ever than employees have a workplace right to lactate.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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