Fifth Circuit Court of Appeals Holds that Title VII and the PDA Cover “Lactation Discrimination”

In Equal Employment Opportunity Commission v. Houston Funding II, Ltd., No. 12-20220 (May 30, 2013), the Fifth Circuit ruled that Title VII of the Civil Rights Act and the Pregnancy Discrimination Act (“PDA”) prohibit discrimination against women who are lactating or expressing milk. It held that lactation is a “related medical condition” to pregnancy and childbirth under the PDA. See 42 U.S.C. § 2000e-(k) (discrimination on the basis of sex includes, but is not limited to, “on the basis of pregnancy, childbirth, or related medical conditions”). The appeals court reversed the trial court’s holding that the PDA did not protect women from discrimination on the basis of lactation.

In this case, the plaintiff had alleged that she was fired after she informed a manager that she intended to return to work, and requested use of a back room to express milk. Upon hearing this request, the manager told her that her job had been filled. She subsequently received a letter terminating her for job abandonment. The appeals court rejected the company’s claim that this was “breast pump discrimination” unprotected under the PDA. The court further found that the ex-employee had presented sufficient evidence that the termination reason was pretextual, including that she had remained in weekly contact with the company during her maternity leave, and that the manager had told her she may need extra leave if she was still breastfeeding.

Notably, the appeals court stated that Title VII and the PDA cover a “wide[] range of employment decisions entailing female physiology,” and cited to precedent that found unlawful a policy that did not allow post-partum women to return to work until they had sustained a normal menstrual cycle. It is unclear how far this language could reach, for example, to women who have health problems related to other aspects of their reproductive systems.

Bottom Line for Employers: Employers may not take an adverse action against a woman because she is lactating, or on the basis of other as-yet undescribed conditions that relate more generally to “female physiology.” The Fifth Circuit made clear in this decision that Title VII and the PDA do not require special accommodations to women due to pregnancy and related medical conditions, including special accommodations for lactation. However, under amendments to the Fair Labor Standards Act (the “FLSA”), at a minimum employers must provide rest breaks and a clean, secure area for new mothers to express milk.

A link to the opinion is here: