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.”

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.”