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Lactation and Nursing Is a Civil Rights Issue

A federal district court in Houston, Texas held in order dated February 9, 2012 that an employer did not discriminate against a woman who alleged she was fired for asking for a private location to pump breast milk after she returned from maternity leave. This decision, though, is hardly the last word on the civil rights of nursing mothers.

EEOC v. Houston Funding II, Ltd., No. 11 Civ. 2442 (S.D. Tex. Feb. 9, 2012) (amended order): In this case, brought by the federal Equal Employment Opportunity Commission (EEOC), Donnicia Venters spoke with the vice president of the company she worked for to let him know she was ready to return to work after giving birth to her daughter. When she asked if she could use a back room to pump milk, the vice-president told her that her position had been filled. The EEOC filed suit, alleging that the employer fired Venters because she asked to be allowed to pump breast milk.

The decision may seem surprising, since the Pregnancy Discrimination Act (PDA) defines discrimination "because of sex" as including discrimination based on "pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). The Texas court, though, held that "lactation is not pregnancy, childbirth, or a related medical condition."

this issue has so far been the subject of only a few decisions under the PDA, so it's far from resolved. As the EEOC brief in that case points out, there is a strong legal argument that singling out a person for firing because of lactation is sex discrimination per se.

And fortunately, other laws more clearly protect mothers in the workplace who choose to nurse children or pump breast milk. A recently-enacted provision of the Affordable Care Act requires employers to provide "reasonable break time" to mothers who pump, as well as a private location other than a bathroom in which to do so. 29 U.S.C. § 207(r)(1). New York law (as well as other jurisdictions) protects lactation as well. N.Y. Lab. L. § 206-c. The New York requires that an employer make a "reasonable attempt" to provide a private location for pumping breast milk.

The other good news is that the Houston Funding case is an example of the EEOC actively pursuing issues of discrimination against caregivers. The Commission is considering an appeal. Employment Law 360 quotes Claudia Molina-Antanaitis, an EEOC attorney, as saying "It's common knowledge that lactation is a pregnancy-related condition . . . A woman can't lactate unless she was recently pregnant and gave birth. I think that the decision is just wrong." Litigation efforts like this one, as well as the EEOC's guidance on unlawful disparate treatment of workers with caregiving responsibilities, are a positive sign. The Commission will hold a hearing on pregnancy and caregiver discrimination on February 15th in Washington, D.C., where this issue is certain arise again.

Please visit the professional bio of Michael Scimone at the Outten & Golden LLP website.

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