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EEOC v. Houston Funding II, No. 12-20220 (5th Cir. May 30, 2013)

The Fifth Circuit holds that discriminating against a woman who is lactating or expressing breast milk violates the Pregnancy Discrimination Act provisions of Title VII.

EEOC v. Houston Funding II, No. 12-20220 (5th Cir. May 30, 2013): The original district court opinion in this case received a lot of publicity, because of the short-sighted view of sex discrimination as somehow not including nursing of infants. The Fifth Circuit makes short work of this ruling, vacating summary judgment and remanding the case for trial.

According to the opinion, while the employee (Venters) was negotiating her return to work from maternity leave, the issue of nursing came up:

"During one conversation, Venters told [her supervisor] Fleming that she was breastfeeding her child and asked him to ask [partner] Cagle whether it might be possible for her to use a breast pump at work. Fleming stated that when he posed this question to Cagle, Cagle 'responded with a strong 'NO. Maybe she needs to stay home longer.''"

When she attempted to return to work, the company informed her that her job was already filled.

On the employer's summary judgment motion, it argued (among other things) that the employee abandoned her job, a valid, non-discriminatory reason for termination. The district court did not reach this contention, though, because it held as a matter of law that being a nursing mother is not a protected status under Title VII.

The Fifth Circuit reverses in an brisk eight-page opinion.

"[We hold that lactation is a related medical condition of pregnancy for purposes of the PDA. Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth. See, e.g., Collins English Dictionary-Complete and Unabridged (Harper Collins Pub. 2003), available at http://www.thefreedictionary.com/lactation (defining lactation as 'the secretion of milk from the mammary glands after parturition'). [Foot note omitted.] It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child."

The court relied on a prior decision, Harper v. Thiokol Chemical Corp., 619 F.2d 489 (5th Cir. 1980), striking down under Title VII a company policy of requiring women who had been on pregnancy leave to have sustained a normal menstrual cycle before returning to work.

"If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman's post-pregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. [Foot note omitted.] And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of 'pregnancy, childbirth, or related medical conditions' [under the PDA]."

Judge Edith Jones concurred in the judgment with a short opinion taking issue with a couple of Foot notes.

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