Female Employee Discharged for Lactation May Sue for Sex Discrimination

The Fifth Circuit Court of Appeals recently ruled that a female employee can sue her former employer for allegedly discharging her because she wanted to express breast milk at work. Equal Employment Opportunity Commission v. Houston Funding II, Limited et al. (5th Cir. 2013).

Account/collections representative Donnicia Ventors alleged that her request to pump breast milk after returning to work from having a baby was met with a “strong no” from her supervisor and that she was told that perhaps she needed to stay out longer on leave. When she contacted her supervisor again a short while later, she was told that she had been discharged for job abandonment.

The Equal Employment Opportunity Commission (EEOC) sued on Ventors’ behalf alleging sex discrimination in violation of Title VII and pregnancy discrimination in violation of the Pregnancy Discrimination Act (PDA). The lower court dismissed the claim, saying that these laws did not prohibit “breast pump discrimination.” However, the Fifth Circuit reversed that decision and ruled that the case can go to trial.

The Fifth Circuit held that Title VII covers a wide range of employment decisions about female physiology, including lactation. The court also held that lactation fits within the PDA’s prohibition of discrimination “on the basis of pregnancy, childbirth, or related medical conditions.”

This is a case worth watching as, until now, lower court decisions addressing this issue have held that lactation cannot support sex discrimination claims.  

As a reminder, since March 2010, employers with 50 or more employees have been required by federal law to provide female employees reasonable breaks and reasonable facilities to pump breast milk at work for up to one year after the child’s birth. Click here for more information from the U.S. Department of Labor. 

State law may provide even greater protections. For example, Colorado requires employers to accommodate female employees who wish to pump breast milk for up to two years after birth. Wyoming also has a law related to breastfeeding in the workplace. Arizona does not have such a law, but is one of a majority of states that allow women to breastfeed in any public or private location. For more information and sample guidelines, go to our Employee Handbook Planning Guide Time Off: Accommodations for Nursing Mothers.