Wednesday, June 5, 2013
A case from the employment discrimination world that might be of interest to health law folks is EEOC v. Houston Funding II, Ltd., 2013 U.S. App. LEXIS 10933 (May 30, 2013). The employee in the case, Donnicia Venters, was told that her position had been filled when she returned to work post partum and requested to use space in a back room to express milk. The issue in the case was whether firing Venters for expressing breast milk is sex discrimination under Title VII of the Civil Rights Act. The district court had concluded that it was not, as a matter of law, and the 5th Circuit reversed. Although at first glance this outcome is apparently a favorable one for women and children, it also reveals ongoing mismatches between anti-discrimination law in the US and the health needs of workers and their families.
The relevant detail of employment discrimination law is that the Pregnancy Discrimination Act (PDA) provides that discrimination “on the basis of” or “because of” sex includes discrimination on the basis of or because of “pregnancy, childbirth, or related medical conditions.” In holding that breastfeeding is a related medical condition of pregnancy, the 5th Circuit stated “Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth.” Thus, on the 5th Circuit’s plain meaning interpretation of the statute, breastfeeding is within the PDA.
Other courts have reached conclusions less favorable to breastfeeding. The district court in Colorado wrote thus in deciding that a refusal to give breaks for breast feeding was not sex or disability discrimination: “A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered.” Falk v. City of Glendale, 2012 U.S. Dist. LEXIS 87278 (D. Colo. 2012). Indeed, understaffing at the Glendale police department was so severe that no one was able to take breaks, even to use the restroom—so the court concluded that Falk’s problem was equal opportunity bad working conditions, not sex discrimination.
The 5th Circuit reads these cases as refusals to grant accommodations under Title VII or the ADA, and thus distinguishes them. In her concurrence, Judge Edith Jones specifically calls out the court’s understanding that accommodations are not available for breastfeeding—and indicates as well that permitting accommodations might be problematically unlimited: “Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.” (I can’t resist commenting that a pump and a bottle of milk are hardly the disturbance that a crying baby on site might be.) The PDA prohibits differential treatment on the basis of sex but does not require any accommodations for pregnancy or lactation: Venters won not because she asked for time to express milk but because her employer disapproved of her breastfeeding. The Americans with Disabilities Act might be a different story as it is discrimination to fail to provide reasonable accommodations for qualified persons with disabilities—but for the fact that many courts have ruled that normal pregnancy and birth are not disabilities.
The American Academy of Pediatrics recommends breastfeeding as the exclusive source of infant nutrition for the first six months. Healthy People 2020 targets are 60.5% breastfeeding for 6 months, 23.7 exclusive breastfeeding for 6 months, and 38% workplace support for lactation. Failure to breastfeed is associated with higher rates of hospitalization for respiratory illness, higher rates of otitis media, higher rates of gastrointestinal disease, higher rates of obesity and diabetes, and many other health problems.
The Family Medical Leave Act requires up to three months of unpaid leave for covered workers. Women who try to return to work after exhausting their FMLA leave and who find themselves with unaccommodating workplaces may thus face a very unpleasant choice: drop out of the work force (or be fired like Venters or Falk) or risk the health of their children. US anti-discrimination law is of little help to them, all too often regarding breastfeeding as a “lifestyle” rather than a health issue.