Lactation and Breastfeeding Bias Is Unlawful Discrimination under Title VII: Fifth Circuit | Practical Law

Lactation and Breastfeeding Bias Is Unlawful Discrimination under Title VII: Fifth Circuit | Practical Law

In EEOC v. Houston Funding II, Ltd., the US Court of Appeals for the Fifth Circuit held that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act (PDA), and that discriminating against an employee because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).

Lactation and Breastfeeding Bias Is Unlawful Discrimination under Title VII: Fifth Circuit

by PLC Labor & Employment
Published on 31 May 2013 • USA (National/Federal)
In EEOC v. Houston Funding II, Ltd., the US Court of Appeals for the Fifth Circuit held that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act (PDA), and that discriminating against an employee because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).

Key Litigated Issue

In EEOC v. Houston Funding II, Ltd., the key litigated issues were whether:
  • Terminating an employee because she was lactating or expressing milk violates Title VII generally.
  • Lactation is a related medical condition of pregnancy under the Pregnancy Discrimination Act (PDA), which amended Title VII's prohibition against sex discrimination to include a prohibition against discrimination on the basis of pregnancy, childbirth and related medical conditions.

Background

Donnicia Venters worked as an account representative for Houston Funding II, Ltd. (Houston Funding) from March 2006 until February 2009. Shortly after Venters gave birth in December 2008, she asked her supervisor if she could use a breast pump at work because she was breastfeeding her child. Her supervisor told her no. When Venters told her supervisor that she had been released to return to work by her doctor in February 2009, she again mentioned that she was breastfeeding and asked if she could use a back room to pump milk. In response, her supervisor told her that they had filled her position. Her employment was subsequently terminated.
Venters filed an EEOC charge alleging sex discrimination. After investigating the charge, the EEOC sued Houston Funding alleging that it had discriminated against Venters on the basis of her sex, including her pregnancy, childbirth or related medical conditions. The district court granted summary judgment to Houston Funding, finding that:
  • Terminating an employee because she is lactating or pumping breast milk is not sex discrimination.
  • Lactation is not a related medical condition of pregnancy.
The EEOC appealed to the US Court of Appeals for the Fifth Circuit.

Outcome

On May 30, 2013, the Fifth Circuit issued an opinion in EEOC v. Houston Funding II, Ltd., vacating the grant of summary judgment and remanding the case to the district court. The Fifth Circuit held that:
  • Terminating an employee because she was lactating or expressing milk violates Title VII because it imposes a burden on women that is not imposed on men.
  • Lactation, an aspect of female physiology affected by pregnancy, is a related medical condition of pregnancy under the PDA, and therefore protected under Title VII, as amended by the PDA.
Based on this holding, the Fifth Circuit found that the EEOC had stated a prima facie case of sex discrimination and reversed the district court's grant of summary judgment for the employer.

Practical Implications

This case is noteworthy because it appears to be the first circuit court decision on whether discrimination on the basis of lactation or breastfeeding is sex discrimination under Title VII and highlights the EEOC's increased focus on pregnancy and caregiver discrimination. This case also clarifies that employers in the Fifth Circuit may not discriminate against female employees returning from pregnancy leave because they are lactating or breastfeeding their newborn child.
In addition, when female employees return from pregnancy leave, employers should consider their other obligations with respect to nursing mothers. For example, the FLSA requires covered employers to provide nonexempt nursing mothers with:
  • Reasonable break time to express milk for one year after the child's birth.
  • A private place, other than a bathroom, which may be used by a nursing mother to express breast milk.
For more information, see DOL Fact Sheet #73: Break Time for Nursing Mothers under the FLSA.
Many states also have enacted laws protecting nursing mothers. For more information, see Leave Laws: State Q&A Tool.

Court Documents