Friday, May 31, 2013
In 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