Search Results for: lactation

Lactation is Pregnancy-Related After-All!

Judge Lynn D. HughesA federal appeals court panel has unanimously ruled that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964.

 The decision by the  U.S.  Court of Appeals for the Fifth Circuit  in Houston, TX,  overturns a somewhat notorious ruling last year by U.S.  District Judge Lynn N. Hughes, also of Houston.

 Judge Hughes ruled that federal law did not prevent Houston Funding II, L.L.C., from firing a new mother because she asked for permission to pump breast milk in a back office after she returned to the job. He concluded that “lactation is not pregnancy, childbirth, or a related medical condition”. and thus  “firing someone because of lactation or breast-pumping is not sex discrimination.”

Houston Funding had argued Title VII does not cover “breast pump discrimination” and filed a motion for summary judgment, which was granted by Judge Hughes. 

The  dismissal was appealed by the U.S. Equal Employment Opportunity Commission (EEOC), which had filed the lawsuit  on behalf of the employee, Donnicia Venters, who gave birth to a baby girl in 2008.

 The Fifth Circuit ruled that Title VII (as amended by the Pregnancy Discrimination Act of 1978) protects working women against discrimination on the basis of pregnancy, childbirth or a related medical condition.  The appeals court ruled:

“Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth … It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child.”

The court reasoned that firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason.

The case was remanded back to the lower court for a trial on the merits.

 David Lopez, General Counsel of the EEOC, said, “We are gratified that the Fifth Circuit gave plain meaning to the words of the Pregnancy Discrimination Act and ruled in our favor that discrimination on the basis of lactation is discrimination on the basis of sex.”

The EEOC looks forward to trying  the case, according to Jim Sacher, regional attorney in the EEOC’s Houston District Office, which brought the initial litigation. “We hope this litigation sends a message to other women that discrimination based on pregnancy, childbirth and related conditions is against the law and that the EEOC is here to help,” he said.

One of the six national priorities identified by the Commission’s Strategic Enforcement Plan is to address emerging and developing issues in equal employment law, including issues involving pregnancy-related limitations.

According to the website www.houstonfunding.com, Houston Funding “is a company which purchases charged-off debt portfolios nationwide from most large institutions.”

Staples and ‘Lactation Chambers’

Next time you need to pick up a pack of pencils or some office paper, think about Tom Stemberg, co-founder of mega-office supply chain Staples, who complained recently that President  Obama’s Affordable Health Care Act will discourage job creation by making employers funnel their capital into “lactation chambers” for new mothers.

Stemberg said on Feb. 6, 2012 that if a Republican is elected president his first order of business to help the U.S. economy should be to repeal so-called Obamacare.

Why would any parent want to support Stemberg or Staples for that matter?

CBS quotes Stemberg as stating: “Do you want [farming retailer] Tractor Supply to open stores or would you rather they take their capital and do what Obamacare and its 2,700 pages dictates – which is to open a lactation chamber at every single store that they have?”

(Since he asked, I would rather the U.S. Congress repealed  tax breaks granted during the GOP Bush administration that made the top one percent of the country obscenely rich at the expense of the rest of us.)

Stemberg says he supports breastfeeding and that his wife breastfed their children but that employers should not have to accommodate working women who realistically cannot breastfeed their children without the minimal level of support that most good employers now provide.

The Affordable Care Act does not require what Stemberg calls “lactation chambers” but merely would require employers to provide a private space other than a bathroom for employees to express breast milk. If these requirements impose undue hardship, an employer that employs fewer than 50 employees is not subject to these requirements.

Meanwhile, the EEOC last month held a hearing on the issue of pregnancy discrimination  which is rampant.  According to the EEOC:

Although pregnancy discrimination has been illegal for decades, many women are fired when they tell their employers that they are pregnant, according to Sharon Terman, a senior staff attorney with the Gender Equity Program at The Legal Aid Society Employment Law Center in San Francisco. She noted one recent case where an employer told a pregnant worker, “That’s not going to work” when it was informed about her pregnancy. The employer maintained that as a small company it couldn’t afford to grant her pregnancy leave.

Another common discriminatory response is to place an employee on forced unpaid leave as soon as the employer learns about the pregnancy. Pregnant employees are often forced to take leave early in their pregnancy when they do not need the leave; they have exhausted their leave by the time they do need it, Terman remarked.

Sometimes pregnant workers are denied accommodations that are provided to employees with disabilities, such as sitting on a stool rather than having to stand all day, taking frequent bathroom breaks and being excused from lifting heavy objects, she added.

Terman said that in one recent case a pregnant worker asked to not be exposed to toxic fumes during her pregnancy, but the manager refused and forced her to take leave. Two days before her child’s birth, her leave was exhausted.

There have been 52,000 pregnancy discrimination charges since 2001; the EEOC has recovered $150.5 million in relief for plaintiffs, testified Peggy Mastroianni, EEOC legal counsel. The plaintiffs have come from all walks of life, from janitors to teachers to senior executives, she added.

Mastroianni remarked that most pregnancy discrimination claims arise after a discharge, followed by challenges to terms and conditions of employment, followed next by harassment.

David Lopez, EEOC’s general counsel, said that many employers do not have policies against pregnancy discrimination and commented that there is “more direct evidence in this area than any other.”

Judge says “lactation discrimination” is legal

U.S. District Judge Lynn N. Hughes, of Houston, TX, has ruled that Title VII of the Civil Rights Act of 1964 does not prevent an employer from firing a new mother because she asks for permission  to pump breast milk in a back office for her newborn.

In other words, Judge Hughes said, Title VII, as amended by the Pregnancy Discrimination Act of  1978, does not prevent employers from engaging in “lactation discrimination.”

In a finding that may come as a surprise to mothers everywhere, Judge Hughes states in his Feb. 2, 2012 decision in EEOC v. Houston Funding II, Ltd, et al,  (Civil Action No. 4:11-cv-02442) that “lactation is not pregnancy, childbirth, or a related medical condition.”

The U.S. Equal Employment Opportunity Commission (EEOC) had sued the debt collection firm —  Houston Funding II, Ltd., and Houston Funding Corporation — for firing a worker who had taken less than a three-month maternity leave in 2009. She had experienced complications from a C-section. Although Houston Funding had been holding her job open for her, the EEOC said the company changed its mind after she asked upper management if she could express milk in a back office upon her return.

Judge Hughes said the dismissal did not violate not violate Title VII of the Civil Rights Act of 1964,  which prohibits employers from discriminating against employees and job applicants because of their sex (including pregnancy, childbirth or related medical conditions).

After plaintiff gave birth, Judge Hughes said, “she was no longer pregnant and her pregnancy-related conditions ended.”

FYI – Judge Hughes, who was appointed by the late President Ronald Reagan in 1985, says discrimination because of pregnancy, childbirth, or a related medical may include cramping, dizziness, and nausea while pregnant.

Donnicia Venters, who had worked for the company since 2006,  gave birth to a daughter on Dec. 11, 2008.  Venters informed the company that her doctor said she could not return to work  until an infection resulting from a C-Section healed. Shortly before her expected return, she asked upper management if she could express milk in a back office upon her return.

Houston Funding maintained that it fired Venters because of “job abandonment.”

According to the website www.houstonfunding.com, Houston Funding “is a company which purchases charged-off debt portfolios nationwide from most large institutions.”

Pregnant Workers Entitled to Reasonable Accommodation

The EEOC has issued an enforcement guidance that makes it clear that an employer must make reasonable accommodations for pregnant workers who experience a medical need for a temporary change at work.

The Pregnancy Discrimination Act of 1978 (PDA) states that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions.  However, many employers took the position that it did not require them to make reasonable accommodations for pregnant workers. For example, if a pregnant worker’s job required her to stand for long periods, the employer would fire the worker if she was temporarily unable to do so rather than provide her with a chair.

Pregnant workers were treated like second-class citizens compared to workers who were injured or disabled. The Americans with Disabilities Act (ADA) clearly states that employers must make reasonable accommodations for individuals who are injured or  disabled.

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