Settlement is Mother’s Day Gift to Working Mothers

On the heels of Mother’s Day,  a Texas woman has won an important victory for all nursing mothers in the workplace.

Donnicia Vetters  accepted an out of court settlement of $15,000  on the eve of a trial in her lawsuit alleging pregnancy discrimination by her former employer, Houston Funding II, LLC, a Houston, TX,  debt collection agency.  After giving birth in 2012, Vetters inquired whether  she would be able to pump breast milk when she returned to her job.  Her boss allegedly responded by telling her that her position had been “filled.”

If that wasn’t outrageous enough,  U.S.  District Judge Lynn N. Hughes of Houston summarily  dismissed Vetters’ lawsuit against Houston Funding on the grounds that “lactation is not pregnancy, childbirth, or a related medical condition.” He said that “firing someone because of lactation or breast-pumping is not sex discrimination.” Judge Hughes, who is male, suggested that “pregnancy-related conditions” end on the day that a mother gives birth.

Fortunately, Judge Hughes’ opinion was unanimously reversed by the U.S. Court of Appeals for the Fifth Circuit, which held that firing a woman because she is expressing milk is unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  Congress passed the Pregnancy Discrimination Act to protect working women against discrimination on the basis of pregnancy, childbirth or a related medical condition.

Ms. Vetters was represented in the case by the U.S. Equal Employment Opportunity Commission.

In  EEOC v. Houston Funding II, LLC, the Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy.  Accordingly, the court said, firing a woman because she is 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.

Instead of showing some decency, acknowledging fault and apologizing to Ms. Vetters, an attorney for Houston Funding was quoted as blaming the EEOC for forcing it to pay up.

The monetary settlement won’t put Ms. Vetters’ baby through college, and won’t compensate for the loss of a job in a difficult economy, but it is a great victory for all working mothers to know that they can’t be fired simply because they choose to nurture their infants with breast milk.

EEOC’s 1st Genetic Discrimination Class Action

Update: The U.S. Equal Employment Opportunity Commission settled this case on Jan. 10, 2014 when Founders Pavilion Inc.  agreed to a five-year consent decree in which it will provide a fund of $110,400 for distribution to 138 individuals who were asked for their genetic information and $259,600 to five individuals whom the EEOC alleged  were fired or denied hire in violation of the ADA or Title VII.

IGenesmagine that an employer could ask applicants  about their family’s medical history: “Do you have a parent or grandparent who suffered from epilepsy. sickle-cell anemia Huntington’s Disease, etc.?”

Why would an employer ask such a question? To find out if the applicant could have a genetic predisposition for a disease that could lead to higher medical expenses down the road. Many employers would simply throw the application into the garbage if an applicant answered the question affirmatively. 

So-called “genetic discrimination”  has been illegal since the  Genetic Information Nondiscrimination Act (GINA) was signed into law by former President George W. Bush  on May 21, 2008.  However, the U.S. Equal Employment Opportunity Commission (EEOC), the authority responsible for enforcing GINA, has done little to enforce it.  Until now.

One of the six national priorities identified in the  EEOC’s strategic plan is  to address emerging and developing issues in equal employment law, including the problem of genetic discrimination.

 The EEOC filed and settled its first GINA lawsuit on the same day earlier this month when it reached a consent decree with a Tulsa, Oklahoma company,  Fabicut, Inc.   Now the EEOC  has filed its second federal GINA lawsuit and its first Class Genetic Information Discrimination Suit.

Violations

The EEOC alleges that  Founder’s Pavilion, Inc., a  Corning, NY, nursing and rehabilitation center, violated GINA by asking for genetic information during the hiring process. Founders is also charged with violating the Americans with Disabilities Act  (ADA) and Title VII of the Civil Rights Act of 1964.

Founders allegedly conducted post-offer, pre-employment medical exams of applicants, which were repeated annually if the person was hired. As part of this exam, Founders requested family medical history, a form of prohibited genetic information.

The lawsuit alleges that Founders fired two women because of perceived disabilities and fired another employee after it refused to accommodate her during her probationary period,  all in violation of the ADA.

Founders also allegedly either refused to hire or fired three women because they were pregnant, in violation of Title VII.

The EEOC filed the lawsuit in federal court after it was unable to reach a pre-litigation settlement with Founders. 

GINA

GINA prevents employers from demanding genetic information, including family medical history, and using that information in the hiring process.

“GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law,” said Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office. “Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women.”

GINA also forbids unions and labor organizations from discriminating on the basis of genetic information.  

Because some genetic traits are most prevalent in particular groups, members of a particular group may be stigmatized or discriminated against as a result of that genetic information. This form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle-cell anemia, a disease which afflicts African-Americans.  In the early 1970s, some state legislatures began mandating genetic screening of all African-Americans for sickle-cell anemia, leading to discrimination and unnecessary fear.

Furthermore, genetic history does not  always equal genetic future. As a result of rapid advances in technology, there is far less certainty today that any individual will inherit  or be incapacitated by a genetic disease.

 * Patricia G. Barnes is the author of Surviving Bullies, Queen Bees & Psychopaths in the Workplace.

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.”

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.