Is lactation protected by Title VII?

A woman who asked about pumping breast milk upon her return from maternity leave was told not to return at all. Did the company violate Title VII of the Civil Rights Act?

What happened? “Andrea” joined Houston Funding Corporation in March 2006 as an account representative/collector. In December 2008, she took a leave of absence to have a baby. Houston Funding is not covered by the federal Family and Medical Leave Act (FMLA) and does not have a maternity leave policy.

Shortly after giving birth, Andrea contacted “Dan,” a Houston Funding partner, to say that she would return to work as soon as her doctor released her. While on leave, Andrea called her supervisor, “Stuart,” weekly to discuss her progress. At one point, Andrea asked Stuart if she might be able to use a breast pump on her return to work. Stuart asked Dan, who reportedly said, “No! Maybe she needs to stay home longer.”

In February 2009, Andrea called Dan to let him know that she was released for work and asked again if she might be able to use a back room to pump milk. After a long pause, Dan said her position had been filled. Days later, Andrea received a termination letter dated one day before her phone call.

Andrea filed a sex discrimination lawsuit. The company said in district court that Andrea failed to maintain contact during her leave and was terminated for job abandonment. In addition, the company argued that Title VII does not cover “breast pump discrimination.”

The district court agreed, ruling that “firing someone because of lactation or breast-pumping is not sex discrimination,” and that “lactation is not pregnancy, childbirth, or a related medical condition.” Andrea appealed.

What the court said. The 5th Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas, overturned the ruling, finding that “lactation is a related medical condition of pregnancy” for purposes of the Pregnancy Discrimination Act (PDA) and Title VII. The court added that “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.”

In addition, Andrea’s phone records showed that she had spent 115 minutes talking with the Houston Funding office while she was on leave, casting doubt on Houston’s proffered reason for her termination. The case was remanded. EEOC v. Houston Funding II LLC, 5th Cir., No. 12-20220 (5/30/2013).

Point to remember. The 2010 Patient Protection and Affordable Care Act requires employers covered by the Fair Labor Standards Act (FLSA) to provide unpaid time and private space for breast milk expression at work, while Title VII bars adverse employment decisions based on pregnancy or other related medical conditions. Also, make sure managers are trained properly in handling delicate cases like this one.

For more information contact:

Clare Vazquez. HR Business Partner

CertiPay/ClubPay

Cell: 561-281-4022

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