Risks associated with an employer's failure to accommodate an employee with lactation needs are increasing. Employers must understand their legal obligations in this area to avoid the risks of both litigation and liability. Under 2010 amendments to the Fair Labor Standards Act (FLSA), as amended by the Patient Protection and Affordable Care Act (PPACA), employers must provide:

(29 U.S.C. § 207(r).)

Then, in a decision that marks a change of course for the federal courts, the US Court of Appeals for the Fifth Circuit held in EEOC v. Houston Funding II, Ltd. that:

(717 F.3d 425 (5th Cir. 2013).)

The decision opened the door for a cause of action based on lactation discrimination under Title VII.

In November 2013, the US Court of Appeals for the Eighth Circuit heard argument on a lactation discrimination case alleging that the plaintiff employee was constructively discharged in violation of the prohibition against sex and pregnancy discrimination under the PDA, Title VII and the Iowa Civil Rights Act. The Eighth Circuit:

(Ames v. Nationwide Mut. Ins. Co., 747 F.3d 509 (8th Cir. 2014).)

Practical Law asked Sarah Andrews of Morgan, Lewis & Bockius LLP, who counsels employers on compliance with lactation laws, to discuss the implications of the Ames v. Nationwide decision, the nascent, but growing case law in this area and best practices for employers.

The Eighth Circuit held that the employee could not make a constructive discharge claim where:

This decision is employer-friendly, however the employee has filed a petition for rehearing en banc, supported by an ACLU amicus brief, so the issue may not be settled.

Unfortunately, no. While the Eighth Circuit confirmed that it sets a higher burden on employees to show constructive discharge than other circuits, the court did not address whether an employer's refusal to allow lactation breaks constitutes a Title VII pregnancy bias claim.

The Eighth Circuit's constructive discharge test requires that employees give their employers "a reasonable opportunity to address and ameliorate" the conditions that constituted constructive discharge. The court acknowledged that this standard was different from the constructive discharge standard that the US Courts of Appeals for the Second, Seventh and Tenth Circuits apply, which sustains constructive discharge claims where a reasonable employee would have believed that had she not resigned, she would have been terminated (see EEOC v. Univ. of Chic. Hosps., 276 F.3d 326, 332 (7th Cir. 2002)). Another circuit court might have reached a different conclusion if it applied its standard to the facts in Ames.

By finding that there was no constructive discharge in Ames, the Eighth Circuit avoided the need to address the Fifth Circuit's decision in EEOC v. Houston Funding II, Ltd. (717 F.3d 425 (5th Cir. 2013)). In that case, the employer had rejected an employee's request for lactation space and suggested the employee stay at home. When the employee complied, the company terminated her for job abandonment. The US District Court for the Southern District of Texas granted summary judgment to the employer, holding that the employee had no claim under Title VII because lactation was not a medical condition related to pregnancy, and that all pregnancy-related medical conditions "ended" the day the employee gave birth (EEOC v. Hous. Funding II, Ltd., No. H-11-2442, , at *1-2 (S.D. Tex. Feb. 2, 2012)). The lower court's holding was completely in line with prior federal and most state court precedent (see, for example, Falk v. City of Glendale, No. 12-cv-00925-JLK, (D. Colo. June 25, 2012) and Allen v. Totes/Isotoner Corp., 915 N.E.2d 622, 623 (Ohio 2009)).

However, a review of those cases demonstrates that nursing employees often focused their requests for accommodations on the fact that they needed to be able to nurse their infants, which courts have generally viewed as a parenting decision, not a physiological condition. In EEOC v. Houston Funding, for the first time the facts were cleanly framed as a request related to the physiological needs of a lactating employee, and the EEOC used this opportunity to argue that Congress always intended for Title VII's protections for pregnancy to include lactating employees.

On appeal, the Fifth Circuit reversed, remanded and ordered the employer to pay the plaintiff's costs for appeal. In a plain-meaning analysis of the statutorily undefined term "medical condition," the Fifth Circuit noted that lactation is a physiological process caused by hormonal changes associated with pregnancy and childbirth entitled to Title VII protection (717 F.3d at 429).

The Fifth Circuit's decision has created a question for employers everywhere about the risk of Title VII liability for a failure to offer lactation break. It is a question the Eighth Circuit avoided in Ames by finding that there was no adverse employment action. However, although Ames side-stepped this question, the case signals a warning to employers. In addition to the fact that the ACLU petitioned for re-hearing en banc, the EEOC participated in briefing and oral arguments in the case. This indicates that both a well-funded lobby group and the government agency charged with enforcing Title VII are pushing resources into lactation issues. The biggest takeaway in Ames is that it may be well worth erring on the side of caution in lactation issues, especially because the cost of offering employees a private place to express breast milk is likely to be very little in most cases.

The Eighth Circuit's focus on constructive discharge, and specifically, an employee's duty to give employers an opportunity to "ameliorate" the conditions driving the employee to quit, resulted in an interesting nod to the employer's whistleblowing compliance policy. The court noted that the employee was aware that the employer had a compliance statement which provided, "If you have reason to believe that [the Company] is not in compliance with the law, contact your local HR professional, the Office of Ethics, or the Office of Associate Relations to report the circumstances immediately."

The court found this fact very significant and held that the employee's failure to further report her concerns before resigning, in light of this statement that plainly asked her to do so, meant that she had not given her employer "the necessary opportunity to remedy the problem she was experiencing," as is required for a cognizable claim of constructive discharge (Ames, 747 F.3d at 514). The lesson here is that a compliance policy with a reporting mechanism designed to protect against liability under whistleblower laws may provide a useful defense in other litigation contexts, including for constructive discharge claims.

Another important takeaway is that the plaintiff in Ames waived her cause of action for lactation break claims under the FLSA on appeal. Therefore, the Eighth Circuit did not analyze these facts under the federal law that specifically requires that employers provide lactation breaks "each time an employee has a need" to express breast milk for the first year following the birth of a child (29 U.S.C. § 207(r)(1)(A), (B)(2)).

In Ames, the employer told the lactating employee that the lactation space was inaccessible because she had not completed the paperwork to gain access. In finding that the employee had not been constructively discharged, the court found it persuasive that other nursing mothers were required to complete the same paperwork and were subjected to the same three-day waiting period.

However, the fact that an employer treats all nursing employees the same, although often a useful fact for employers in Title VII litigation, does not necessarily satisfy the requirements of the FLSA. The Department of Labor (DOL) promulgated informal rules on this point and is clear that an employer's duty is tied to the physiological needs of the nursing employee, who needs to express milk at least as often as the infant would need to nurse (see DOL, Wage and Hour Division, Reasonable Break Time for Nursing Mothers, 75 Fed. Reg. at 80075). Employers should consider these guidelines and ensure that their lactation policies do not restrict immediate access to lactation spaces. Further, employers should consider training supervisors that accommodating lactation requests is necessary to comply with the law.

The biggest issue is that the litigation landscape is quite unsettled. This increases the risk of litigation, even if an employer is ultimately not liable for a violation of the law.

The lactation break provisions of the FLSA are untested and they do not have an explicit cause of action for break time, only for wage violations (see DOL Fact Sheet #73: Break Time for Nursing Mothers under the FLSA). Accordingly, in an unpublished opinion, the first district court to decide an FLSA lactation break claim held that although a private cause of action might exist for FLSA retaliation claims related to lactation breaks, enforcement actions for direct violations of the lactation breaks provision were the province of the DOL (Salz v. Casey's Mktg. Co., No. 11-CV-3055-DEO, , at *7 (N.D. Iowa July 19, 2012)). However, in a subsequent case, the US Court of Appeals for the Eleventh Circuit ruled on the merits of both an FLSA lactation break claim and a retaliation claim without addressing the issue of a private cause of action (Miller v. Roche Sur. & Cas. Co., 502 F. App'x 891 (11th Cir. 2012)).

It is clear that the risk associated with an employer's failure to accommodate a nursing employee is increasing, given the new possibility of a cause of action under Title VII for denying lactation breaks and the limited case law interpreting the FLSA. Further, the DOL has reported that in the first two years after the lactation breaks amendment to the FLSA took effect, it conducted 54 investigations and found 36 violations.

Recent litigation suggests that a noncompliant employer may face multiple causes of action for refusing to provide lactation breaks in appropriate spaces, including those based on:

Non-compliant employers might ultimately be forced to defend FLSA claims and also weave through the EEOC administrative exhaustion requirements on the same set of facts. This compounds the risk of compensatory and punitive damages and fees, as well as the risk of systemic litigation.

Employers should review their policies and practices to ensure they are compliant with federal and relevant state law protections, which can be more expansive than the federal requirement. In addition to creating appropriate, private spaces for lactation needs, employers should consider training supervisors on the company's lactation obligations and how to properly respond to requests for lactation accommodation. Employers can decrease risk by establishing open lines of communication with employees to develop practical solutions to both issues of legal compliance and the employer's business needs.

Employers must also consider whether lactation breaks should be paid or unpaid. Although non-exempt employees are only entitled to unpaid lactation break time, the DOL has been clear that when an employer offers compensated break time (typically 20 minutes or less), the employer must pay an employee who uses that time to express milk in the same manner as other employees, and an employee must be completely relieved from duty before a break can be unpaid (DOL Fact Sheet #73: Break Time for Nursing Mothers under the FLSA).

Additionally, employers should note that although exempt employees are not technically covered by the FLSA's lactation protections in Section 207(r), employers may lose the right to claim that an employee is exempt by engaging in an actual practice of improper deductions from salary (29 C.F.R. § 541.602). Further, almost half of the states have lactation break laws that cover exempt employees and they receive Title VII protection, which means that employers should consider adopting a lactation break program that applies to all employees. For a sample lactation break policy, see Standard Document, Lactation Break Policy.