Friday, May 31, 2013

Fifth Circuit holds that lactation discrimination violates Title VII

BreastfeedingIn the first circuit court of appeals decision on the issue, the Fifth Circuit, in EEOC v. Houston Funding II held yesterday that discriminating against an employee because she is lactating or expressing milk is sex discrimination. The decision reversed summary judgment in favor of the employer and remanded the case to the district court. We reported on the district court decision here, and you might recall that the district court had held that lactation was not a condition related to pregnancy because it did not start until pregnancy had ended.

The Fifth Circuit's decision held that lactation was a medical condition related to pregnancy and childbirth because it was a physiological state caused by pregnancy and subsequent childbirth. It further relied on prior circuit precedent, which had held that menstruation, a normal part of female physiology, was a condition related to pregnancy and childbirth:

Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly afterthe 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 postpregnancy 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.”

In a footnote in this section, the court distinguished cases about whether a failure to accommodate an employee who wanted to express milk at work in a particular way violated Title VII. Title VII does not require accommodations for women affected by pregnancy, childbirth, or related conditions, just that those women be treated the same as other employees who may be similar in their ability or inability to work. So if the employer never allows employees to take breaks, it may not be required by Title VII to allow lactating women to take breaks, for example. 

This case was not about whether the employer had to accommodate the employee's request to use her breast pump at work, or at least not yet. Instead, it was about whether she was fired just for saying that she had said was lactating and wanted to express milk at work. She hadn't asked for any special accommodation yet. The employer doesn't exactly deny that; instead, it contends that she was not fired at all and instead abandoned her job.

This decision is an important development in the area of sex discrimination in sex-specific contexts. The accommodation framing seems somewhat problematic, though. It seems too easy to see a request related to expressing milk as something special, disregarding the kinds of actions employees simply take without requesting or requests that employees make all of the time that aren't viewed as accommodating. For example, even workplaces with rigid requirements about where employees must be and for how long (think a factory production line or cash register at a store) often provide breaks for employees to go to the bathroom, get a drink of water, or just rest for a few minutes. If an employee uses one of these breaks for some other purpose, it seems problematic to suddenly frame it as an accommodation.

With the amendment of the FLSA to require that most employers provide reasonable breaks and facilities to allow lactating women to express milk, perhaps this issue will fade, but it still says a lot about what we view as the "norm" to talk about accommodating pregnant or lactating women, when we don't talk about accommodating people with full bladders.

h/t N. William Metke, @metkelaw


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You had me until that last sentence. As a former lactator, I can assure you that a full bladder is not an apt analogy. But thank you for this report on the case.

Posted by: Kelly | Jun 4, 2013 7:56:24 AM

I do see what you mean, Kelly. I too am a former lactator, and the analogy may be imperfect, but I'm not sure there's a better one to make the point that there is a wide range of normal variation of bodily functions among people that might require some break from work and some action. Many things in that range are accommodated by the structure of work and in individual workplaces. We don't think of many things in that range as "different" so that the person requires some "special" treatment.

In some ways, lactation is the same as these other kinds of bodily functions. In the benefits to our children fed, though, it's quite different from other bodily functions, of course. I didn't emphasize that in this post because Title VII currently only requires a sameness of treatment. And so focusing on sameness to accommodations already provided has a lot of traction.

Focusing on the benefits has tended to allow courts and policy makers to cabin the issue as a special women's issue, not covered by current law, and a new burden on employers. In other words, it's the usual bind.

Posted by: Marcia | Jun 5, 2013 9:39:28 AM

Coddling of breeders and lactators only fractures the workplace even more. Because of company policies of insurance, FMLA, sick leave and so on that disfavor the non-breeders among us, I have shied away from computer engineering jobs that offer "benefits" in favor of non-benefitted, contract, consulting or temp jobs in which I generally earn twice the going pay rate. It always impressed me that, in a long career working in dozens of firms in several countries, I almost never had a female boss, colleague or underling, exclusive of secretaries and receptionists. There was one woman engineer among 35 at Siemens of Munich, 2 women engineers among hundreds at TI of Dallas, 2 among 30 at BDM, zero at Motorola, one at Sunbeam, none at Zenith, none in Buenos Aires, none in Scotland, and so on. It appears that women gravitate to low-paying, low-esteem jobs that offer full breeder benefits, whereas young single non-breeding men end up running Apple, Facebook and the rest.

I advise a young savvy woman to get herself sterilized and announce the fact on her resume in order to join the exclusive boys' clubs. We sure don't want to work with under breeder-benefit conditions!

Posted by: Jimbino | Jun 13, 2013 11:30:15 AM

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