Hicks v. City of Tuscaloosa, Ala., No. 16-13003 (11th Cir. Sept. 7, 2017)

| Sep 7, 2017 | Daily Developments in EEO Law |

In a potentially important development for family-responsibilities discrimination law, the Eleventh Circuit upholds a $161,319.92 award for a woman who was forced to quit police work because the city would not accommodate her breastfeeding.

Hicks v. City of Tuscaloosa, Ala., No. 16-13003 (11th Cir. Sept. 7, 2017): Hicks was an investigator on the narcotics task force with a good performance record. Her commanding officer, Lieutenant Richardson, resented that Hicks was given pharmaceutical fraud cases so she could avoid working nights and weekends. Richardson also said that she would only give Hicks six weeks of FMLA leave, but Hicks took the full twelve weeks.

On Hicks’s return, she was immediately written up. Hicks also “overheard Richardson talking to Captain Robertson saying ‘that b****,’ and claiming she would find a way to write Hicks up and get her out of here. And another officer overheard Richardson talking loudly about Hicks saying ‘that stupid c*** thinks she gets 12 weeks. I know for a fact she only gets six.'”

Eight days after her return, on the recommendation of Captain Robertson, Hicks was reassigned to patrol duty, as a result of which she “lost her vehicle and weekends off,” was “going to receive a pay cut and different job duties,” and would be required to wear a ballistic vest while on duty.

“{Hicks’s doctor] wrote a letter to Chief Anderson recommending that she be considered for alternative duties because the ballistic vest she was now required to wear on patrol duty was restrictive and could cause breast infections that lead to an inability to breastfeed. But Chief Anderson did not believe that Hicks had any limitations because other breastfeeding officers had worn ballistic vests without any problems.”

Instead of offering Hicks alternative duty, Chief Anderson told Hicks that she could continue to patrol her beat without a vest or with a specially fitted one. “But to Hicks, not wearing a vest was no accommodation at all because it was so dangerous. Furthermore, the larger or ‘specially fitted’ vests were also ineffective because they left gaping, dangerous holes.” She resigned that day.  

Hicks sued the department and won at trial on three theories: (1) discriminatory reassignment under the Pregnancy Discrimination Act (PDA), (2) PDA constructive discharge, and (3) FMLA retaliation. The jury awarded $374,000, and the judge reduced the award to $161,319.92 plus costs and attorneys’ fees.

The Eleventh Circuit affirms. On the reassignment claim (under the PDA and FMLA), the panel holds that “multiple overheard conversations using defamatory language plus the temporal proximity of only eight days from when [Hicks] returned to when she was reassigned support the inference that There was intentional discrimination.” (It also holds that, following trial, it was unnecessary for the plaintiff to present comparator evidence because the Court’s “job is only to decide if There was enough evidence for the jury to infer discrimination.”)

On the constructive-discharge claim, the panel holds that the jury could have found that the accommodations for breastfeeding that the city offered were so inadequate, that “any reasonable person” in Hicks’s position “would have been compelled to resign.”

The panel also holds that lactation is a “medical condition” related to pregnancy or childbirth, and is thus protected by the PDA.

“[I]t is a common-sense conclusion that breastfeeding is a sufficiently similar gender-specific condition covered by the broad catchall phrase included in the PDA …. We have little trouble concluding that Congress intended the PDA to include physiological conditions post-pregnancy. The PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding–an important pregnancy-related8 ‘physiological process.'”

While noting that the PDA did not require that Hicks receive special accommodations, “the jury found that the City’s action in refusing an accommodation afforded to other employees compelled Hicks to resign. In the eyes of a jury, this constituted a constructive discharge, which is effectively an adverse action.”

Finally, the panel rejects the city’s defense (that Hicks did not mitigate her damages by seeking comparable work) and a challenge to the jury instructions.

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