For many new moms returning to work after the birth of a child, pumping breast-milk is considered to be a necessary evil. Necessary because pumping ensures that these mothers’ babies can continue to experience the many benefits of breast-milk, and helps the mothers to maintain their milk supplies, relieves painful engorgement, and prevents potentially serious medical conditions like mastitis. Evil because, well, it is not exactly fun to do, especially if the workplace is not supportive. The U.S. Centers for Disease Control reports that full-time work for new mothers is “significantly associated with lower rates of breastfeeding initiation and shorter duration,” due primarily to workplace barriers such as “a lack of flexibility for milk expression in the work schedule, lack of accommodations to pump or store breast-milk, concerns about support from employers and colleagues, and real or perceived low milk supply.” Click here to view CDC's report.
One mother recently faced with this predicament is Donnicia Venters, who alleged in a federal lawsuit that her employer fired her while she was on maternity leave when she inquired about using a back room in the office to pump milk upon her return from leave. The EEOC brought suit on Ms. Venters’ behalf in the United States District Court for the Southern District of Texas, asserting sex discrimination claims against the employer under Title VII. See EEOC v. Houston Funding II, Ltd., Case No. 4:11-cv-02442 (S.D. Tex.). Title VII makes it “an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act amended Title VII to state that “‘because of sex’ … include[s] … because of … pregnancy, childbirth, or related medical conditions ….” 42 U.S.C. §2000e(k).
United States District Judge Lynn N. Hughes (who is a male, for the record) recently granted summary judgment in favor of the employer, ruling that “[f]iring someone because of lactation or breast-pumping is not sex discrimination.” In a rather conclusory fashion, the court reasoned that “lactation is not pregnancy, childbirth, or a related medical condition” and that any “pregnancy-related conditions” experienced by Ms. Venters ended on the day she gave birth to her daughter. To see the full opinion click here.
In the few short days since it has been issued, this ruling has garnered much critical attention. As many commentators have pointed out—and this seems quite obvious—only women can lactate, and lactation does not usually happen in the absence of childbirth. The ruling therefore strikes many as illogical—how can firing someone for lactation or breast-pumping not be because of sex or a childbirth-related medical condition? The EEOC has stated that it is considering whether to appeal the ruling. The issue therefore remains far from settled. It remains to be seen whether the appellate court, or other judges who might be faced with this issue, will come to a different conclusion than Judge Hughes did.
Pumping mothers also have a new legal protection that Ms. Venters did not have when she gave birth to her baby in 2008. Effective March 23, 2010, the Patient Protection and Affordable Care Act (also known as the Healthcare Reform Act) amended the Fair Labor Standards Act (FLSA) to require employers to provide a nursing mother break time to pump. Specifically, covered employers must provide reasonable break time for an employee to express breast-milk for her nursing child for one year after the child’s birth, each time the employee has need to express milk. See 29 U.S.C. § 207(r). Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast-milk. Id.
There are, of course, several limitations to this protection. The FLSA amendment does not require employers to pay employees for such break time. Id. The requirements also do not apply to employers with less than 50 employees, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. Id.
Under this amendment, nursing mothers who experience “lactation discrimination” in the workplace might now have a remedy—albeit a limited one—under the FLSA. The FLSA makes it illegal for an employer to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” 29 U.S.C. § 215. In most jurisdictions, this provision applies to any employee who complains about an FLSA violation, either formally to an administrative agency, or informally to the employer. A nursing mother who complains about her employer’s failure to provide reasonable break time for her to pump would therefore be protected by this anti-retaliation provision in the FLSA. As the language of this anti-retaliation provision makes clear, however, the employee must actually complain to the employer in order to be protected. Thus, if Judge Hughes’ opinion turns out to be the prevailing view and lactation is not protected under the Pregnancy Discrimination Act or Title VII, there is still a gap in protection, even with the FLSA amendment. Nursing mothers who are simply fired for pumping at work before ever complaining about an employer’s FLSA violation would have no remedy. In this scenario, a legislative amendment to Title VII, or legislation at the state level, might be the only potential source of protection.
In fact, many states have attempted to fill the gaps in protection for nursing mothers by passing their own legislation. A complete list of state laws enacted to protect breastfeeding can be found here. Of the states where Stoel Rives has offices, California, Oregon, and Minnesota each have laws that require employers to provide breaks for women to breastfeed or pump. To the extent these state laws are more robust than the FLSA amendment, they are not preempted. see 29 U.S.C. § 207(r)(4).
Today the U.S. Supreme Court held that an employer does not violate the Pregnancy Discrimination Act (PDA) if it pays pension benefits based in part on pre-PDA calculations that gave employees less retirement credit for pregnancy leave than for other types of medical leave. Click here to read the Court's decision in AT&T Corp. v. Hulteen.
The employer in Hulteen, AT&T, based its pension calculations on a seniority system based on years of service minus uncredited leave time. AT&T gave less credit for pregnancy absences than it did for other types of medical leaves. When the PDA was enacted in 1978, AT&T replaced its old plan a plan that provided the same service credit for pregnancy leave; it did not, however, make any retroactive adjustments for pre-PDA pregnancy leaves. Some female employees, including the plaintiff Hulteen, received less credit for pre-PDA pregnancy leaves, and therefore received smaller pensions.
The lower courts held that this violated Title VII; however, the Supreme Court reversed 7-2. Because AT&T's pension payments accord with the terms of a bona fide, non-discriminatory seniority system, they are insulated from challenge under Title VII §703(h). (The system was considered non-discriminatory because, prior to enactment of the PDA, an accrual rule limiting the seniority credit for time taken for pregnancy leave did not unlawfully discriminate onthe basis of sex.)
In the first case of its kind before a federal circuit court, the Seventh Circuit Court of Appeals held recently that an employer violated Title VII for terminating a female employee who underwent in vitro fertilization treatments. To read the opinion in Hall v. Nalco Company, click here.
The employer terminated the employee citing “absenteeism—infertility treatments.” It then replaced her with a female employee who was incapable of becoming pregnant. The employee sued, alleging her termination violated the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy and childbirth as bases for discrimination. The employer argued that the termination was for a gender-neutral reason: infertility. However, the Seventh Circuit held that there was evidence the termination was for her gender-specific quality of childbearing, in violation of Title VII.
Despite Hall, employment actions based on infertility are not unlawful as long as they affect men and women equally. For example, employers may lawfully exclude all treatments for infertility from their health benefit plans. Employers should beware, however, of adverse treatment of a particular infertility-related procedure that affects women only. Just as an employer may not discriminate against women because of pregnancy or maternity leave, it may not discriminate against women who undergo in vitro fertilization. For more information on avoiding pregnancy discrimination, read this fact sheet from the EEOC.