Lactation is Not a Condition Related to Pregnancy Says S.D. Tex.

Earlier this month, the EEOC lost a sex discrimination case on summary judgment, EEOC v. Houston Funding. The employee in that case alleged that she was fired for asking to be able to pump breastmilk upon her return to work after giving birth. The district court judge held that even though discrimination on the basis of pregnancy, childbirth, or related medical conditions is a violation of Title VII, that once the employee gave birth, she had no more pregnancy-related conditions and that therefore firing someone on the basis of lactation or pumping breastmilk could not be sex discrimination, citing these other district court decisions in support: Puente v. Ridge, No. M-04.267, 2005 U.S. Dist. LEXIS 46624, at *1I-12 (S.D. Tex. July 6, 2005); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *30 (D. Or. Apr. 9, 1999; Wallace v. Pyro Mining Co., 789 F . Supp. 867, 869 (W.D. Ky. 1990).

The judge did not address whether lactation was a condition related to childbirth, the noun that comes between pregnancy and the phrase "other medical conditions," which seems rather problematic for the judge's reasoning. I could see the argument that lactation is not necessarily a "medical" condition, because that suggests dysfunction rather than a natural consequence of pregnancy and childbirth, but that was not what the judge appeared to rely on. Joan Willams (U.C. Hastings) has a great counterargument to that in this news story summarizing the woman's claim. She links breastfeeding to transferring immunities from mother to child, and refers to the medical complications like mastitis that can arise when mothers cannot breastfeed or express milk.

Interestingly, the facts of the order read very differently from the facts that the employee is alleging (see the EEOC complaint here). While I can't find a copy of the summary judgment documents to be sure, it looks as if the judge has not viewed the facts in the light most favorable to the EEOC. I see an appeal on the horizon here.

MM