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.”

Resolved … Don’t Be Evil

The vast majority of workplace bullies don’t think of themselves that way. They justify or make excuses about their behavior. However, I suspect that many workplace bullies – at least those who are not actual psychopaths or sociopaths – do know on some level that what they are doing is wrong.

Every manager should consider the following:

  • How would you feel if your mother, child or partner was treated the way you treat your target? Not so good? Then what you are doing is wrong.
  • Are you flattering yourself?  Are you really a perfectionist trying to get the best out of your workforce or are you a petty tyrant satisfying a personal need for power and control?  If the latter, your actions are damaging both the target and your employer.
  •  There is a fine line between workplace abuse and other forms of abuse, including intimate partner abuse, child abuse and elder abuse. Especially for those in a supervisory position, when you zero in on a subordinate target, visualize a small child who is about to be smacked.
  •  Yes, some employees deserve to be disciplined and/ or fired but there is a difference between exercising legitimate supervisory authority and bullying. No employee ever deserves to be treated disrespectfully or bullied.
  • If you are an employer who is using bullying strategically to avoid a legal obligation – such as paying workers compensation – you are taking a serious risk. Sometimes targets of bullying do not simply fade into obscurity. They hire lawyers and sue.  And whether they win or lose, you will pay.
  •  Bullies are “ fortunate” to work in the United States, which unlike many other industrialized countries for decades has ignored  overwhelming research that workplace bullying causes potentially severe mental and physical damages to targets. But times are changing. Educated employers do not tolerate bullying because they know that they ultimately pick up the tab in terms of needless turnover, absenteeism, higher health costs, litigation, etc.
  • If you are a Human Resources “professional” and you turn a blind eye when a worker complains to you about being bullied – or make things worse for the target – you are part of the problem.  You are acting unethically and doing a great disservice to your employer.

New research is showing that workplace bullies are often their own worst enemies.  American is growing less tolerant of this kind of management style.  It’s one thing if a manager gets an isolated complaint but it can quickly end a promising  career when there are multiple bullying complaints. For all of the above reasons and many more, I propose the following resolution for workplace bullies in 2012:

  DON’T BE EVIL!

Where is America’s Age Discrimination Commissioner?

Australia, a world leader in combating workplace bullying, recently announced the appointment of Australia’s first Age Discrimination Commissioner.

Despite the fact that age discrimination is epidemic in the United States, it appears the problem is being  ignored by the federal government and non-profit advocacy agencies like the American Association for Retired Persons (one of the country’s leading medical insurers).

Australia announced tn July 2011 the appointment of an Age Discrimination Commissioner  to combat age discrimination in Australian workplaces and the wider community.

Where is America’s age discrimination commissioner?

The current economic climate in the United States is like a “perfect storm” for older workers. There is record unemployment for workers aged 55 and above and there is record age discrimination.

The impact of unemployment on older workers is dire as they face potentially decades of retirement, and health issues, without the ability to prepare financially.  Older workers do not have the time and may never recover from the adverse impact of age discrimination.

Age discrimination complaints to the U.S. Equal Opportunity Commission  are at an all-time high.  In five years, the number of age discrimination complaints has increased FORTY PERCENT.  There were 23,264 age discrimination complaints filed with the EEOC in 2010.

Meanwhile, the  Bureau of Justice Statistics(BJS) reports that unemployment for persons aged 55 and above has increased sharply since the beginning of the recession in December 2007. The jobless rate among older workers was 7.1 percent (seasonally adjusted) in February 2010, just shy of the record-high level of 7.2 percent in December 2009.

In addition, the BJS says that older workers remain unemployed longer than younger workers. The BJS states that nearly half (49.1 percent) of older jobseekers had been unemployed for 27 weeks or longer in February 2010, compared with 28.5 percent of workers aged 16 to 24 years and 41.3 percent of workers aged 25 to 54 years.

(According to a 2011  CareerBuilder survey on workplace bullying,  women aged 55 and above are more likely than any other demographic group to  report feeling bullied in the workplace, another problem America ignores.)

Australia’s new age commissioner, the Hon. Susan Ryan, will operate under he auspices of the Australia Age Discrimination Act, and will tackle issues such as discrimination in getting job or applying for a promotion, enrolling at a university, applying to rent a house, or using services such as at a bank. The government provided $4 million in funding over four years to the Australian Human Rights Commission to support the new position.

Australia was one of the first countries to recognize the problem of workplace bullying, which causes potentially severe  injury to a target’s mental and physical health, destroys families and costs the United States billions each year in needless turnover, lost work, higher health costs, absenteeism, etc.  In fact, in Victoria, Australia, workplace bullying is considered a criminal offense under some circumstances.

At this point, it may go without saying that America has yet to offer workers any protection against workplace bullying.

Then the “Law is a Ass”

“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot.” –  Charles Dickens, Oliver Twist.

A federal judge in New York earlier this week threw out a pregnancy discrimination case against Bloomberg, L.P.,  holding that it is not the court’s job to “tell businesses what attributes they must value in their employees as they make pay and promotion decisions.”

Chief U.S. District Judge Loretta A. Preska, of the U.S. District Court for the Southern District of New York, essentially says pregnant women who take maternity leave are making a choice which may leave them in a  disadvantageous position at the workplace. She says it’s not against the law  because … hey, it was their choice wasn’t it?

The EEOC alleged that 49 of the 78 claimants in the lawsuit were demoted once they announced their pregnancy and/or returned from maternity leave in terms of a diminished title and the number of employees directly reporting to them. Not only were their responsibilities diminished but their responsibilities were handed off to junior male employees.  Also, the EEOC alleged, 77 of 78 of the claimants had their total compensation decreased after becoming pregnant or returning from maternity leave.

Bloomberg is an international financial services and media company based in New York City that provides news, information, and analysis. New York City Mayor Michael Bloomberg owns the majority of the company, which he founded in 1981

Judge Preska writes:

“ … women who take maternity leave, work fewer hours, and demand more scheduling flexibility likely are at a disadvantage in a demanding culture like Bloomberg’s … The law does not require companies to ignore or stop valuing ultimate dedication, however unhealthy that may be for family life.”

She goes on to write:

“The law does not mandate “work-life balance.” It does not require companies to ignore employees’ work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be “forward thinking.” But they are not required by law.”

Judge Preska granted Bloomberg’s request for a summary judgment to dismiss the EEOC’s complaint, finding that a  reasonable jury could not conclude that Bloomberg engaged in a pattern and practice of discrimination against pregnant women who took maternity leave. Judge Preska said the “anecdotal” evidence provided by the EEOC was insufficient in light of  evidence produced by Bloomberg.  Judge Preska’s decision means the case cannot proceed to a jury.

Judge Preska acknowledged that compensation “growth” for workers who took maternity leave was less than for those who took no leave but she said it is legal to discriminate “between those employees who take off long periods of time in order to raise children and those who either do not have children or are able to raise them without an appreciable career interruption.”

The EEOC also presented examples of alleged bias. One class member, for example, “reported to the CEO in 2003 that the head of the News division made some negative comments about women taking paid maternity leave but then not returning to the company, the CEO said, “Well, is every fucking woman in the company having a baby or going to have a baby?”

According to Judge Preska: “Isolated remarks by a handful of executives — or one specific executive, the head of News, which EEOC focuses on heavily here — do not show that Bloomberg’s standard operating procedure was to discriminate against pregnant women and mothers.”

Finally, here’s what Judge Preska has to say about the fact that only women bear children:

“To be sure, women need to take leave to bear a child. And, perhaps unfortunately, women tend to choose to attend to family obligations over work obligations thereafter more often than men in our society. Work-related consequences follow. Likewise, men tend to choose work obligations over family obligations, and family consequences follow. Whether one thinks those consequences are intrinsically fair, whether one agrees with the roles traditionally assumed by the different genders in raising children in the United States, or whether one agrees with the monetary value society places on working versus childrearing is not at issue here. Neither is whether Bloomberg is the most “family-friendly” company. The fact remains that the law requires only equal treatment in the workplace. Employment consequences for making choices that elevate non-work activities (for whatever reason) over work activities are not illegal.”

Judge Preska was nominated by President George H. W. Bush on March 31, 1992.

It is not clear whether or not Judge Preska has any children.