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Breastfeeding is Protected by Title VII


By Patrick Ogilvy

Pregnancy leave
A pregnant account representative for a debt collection agency took a leave of absence to have her baby.  Neither the account representative/employee nor her supervisor specified a date for her return, and the agency/company did not have a maternity leave policy providing for such a date.  Although the employee planned to return to work soon after giving birth, and informed one of the company’s partners of her intention, she suffered complications from her C-section and remained on leave longer than she planned.

Throughout her absence, the employee regularly contacted her supervisor and other company managers to inform them of her status.  During one of these calls, the employee told her supervisor she was breastfeeding her baby and asked him to inquire with the partner whether she could use her breast pump at work.  The partner strongly denied the request and informed the supervisor he believed the employee should stay home longer.  Once the employee’s doctor released her to return to work, she called the partner and again asked whether she could use a back room to pump milk.  The partner took a lengthy pause before responding that the company had actually filled the employee’s spot.  The company mailed a terminated letter to the  employee, citing job abandonment as the reason for dismissal.  The employee then filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC}, in response to which the company claimed the employee never contacted her supervisor during her leave and had not attempted to return to work.  The EEOC then sued the company on the employee’s behalf for violation of Title VII’s protection against gender and pregnancy discrimination.

Breastfeeding is a medical condition
Addressing the issue for the first time, the Fifth Circuit considered whether breastfeeding was even protected under Title VII’s provisions for gender and/or pregnancy discrimination.  As amended by the Pregnancy Discrimination Act (PDA), Title VII protects against discrimination “because of sex,” which includes “because of or on the basis of pregnancy, childbirth, or related medical conditions.”  The Fifth Circuit analyzed whether lactation is a related medical condition of pregnancy, such that the employee’s termination, based on her need to pump breast milk, constituted sex discrimination in violation of Title VII.  The court concluded her termination, motivated by this need to pump milk, imposed upon her a burden which male employees need not and could not suffer, and accordingly was sex discrimination.

The court explained the phrase “medical condition” does not only include medical complications, but also any physiological condition related to pregnancy.  The company did not dispute lactation is a physiological process directly caused by hormonal changes associated with pregnancy and childbirth.  Accordingly, the court determined lactation is a medical condition unique to women and pregnancy, and is covered by Title VII and the PDA.  As such, the company could be held liable for sex discrimination for terminating the employee because she was lactating. 

Although this case reflects the first time a federal U.S. Court of Appeals has determined breastfeeding can support a sex discrimination claim under Title VII, its practical impact may be minimal, as it did not address the situation of whether an employer is required to provide accommodations to a female employee requesting a private place at work to pump breast milk.  Such rights to accommodation have been affirmatively provided to employees under many state laws.  Further, the Affordable Care Act (popularly called “Obamacare”), requires employers to provide female employees with a time and place to pump milk for up to a year following birth.  However, this case makes clear an employer should be wary of taking any employment action based on a female employee’s breastfeeding related needs.

Read the case here.



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