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.”

Other Approaches to Workplace Bullying?

So far, efforts to combat bullying in the American workplace largely have centered on a campaign spurred by the Workplace Bully Institute to pass anti-bullying legislation on a state-by-state basis.  To date, the effort has yet to yield a single success (defined as a state that has adopted such legislation).

What would happen if workplace anti-bully advocates took a different approach?

One idea might be federal legislation to amend Title VII, the Civil Rights Act of 1964, to  permit any worker to sue if subjected to a hostile workplace environment.

Another idea is to approach the problem as an important public  health issue  –  which it is – and adopt health and safety regulations to protect employees on that basis. Finally, one might think local – push cities and towns to adopt legislation to protect employees from workplace abuse.

Advocates for anti-obesity measures took the local approach, with some initial success.  However, industry groups are now finding a way to halt local initiatives, using stealth tactics to erect statewide road blocks.

Public health advocates persuaded some progressive cities and counties around the nation to pass anti-obesity measures, such as requiring restaurants to list fat and calorie content on their menus or to prepare food without unhealthy trans-fats.  The New York Times reported June 30, 2011 that  industry groups are acting pro-actively to quash these anti-obesity efforts. and they are using stealth tactics.

The Times notes that Ohio’s 5,000-page state budget contained sweeping limitations on local government control over restaurants.  Florida  adopted similar limits, tucked into a bill that largely concerned amendments to state regulations on vacation rentals. Other states with limits include Alabama, Georgia, Tennessee, and Utah. Earlier this year, Arizona prohibited local governments from forbidding the marketing of fast food using “consumer incentives” like toys.

Not surprisingly, state restaurant groups are leading the charge for the preemptive state legislation.   State legislators who sponsored preemptive legislation in Florida and Alabama say they were contacted by their state’s restaurant associations, which expressed concern that California’s latest food rules would be adopted by their own local governments.

The Los Angeles City Council has banned fast food restaurants in South Los Angeles, where rates of poverty and obesity are high. In April, the Santa Clara County supervisors adopted a policy that forbids fast food restaurants from selling meals with toys, like those connected with movie promotions.

The Ohio law gives the state’s director of agriculture “sole and exclusive” authority to regulate the use of consumer incentives in food marketing and prohibits localities from requiring menu labeling and using incentives and laws to address “food-based health disparities.”  The statute may nullify a law passed by the Cleveland council in April that banned restaurants and food makers from using “industrially produced” trans fats in products.

One of the fundamental concepts of the U.S. Constitution involves the importance of state’s rights – the idea  is that real change and progress comes from experimentation among the states and not through a federal bureaucracy. It doesn’t take a PhD. to see that this concept also is relevant to states, which tend to  adopt progressive statewide legislation in response to local initiatives.   I’d rather be guided by the framers of our U.S. Constitution than self-interested industry groups. Wouldn’t you?

The state-by-state campaign to adopt workplace anti-bully legislation began in 2003 in California and has encountered steady opposition from business groups, who apparently are largely ignorant about the enormous toll bullying exacts on the employer’s bottom line.   This, despite the fact that the Workplace Bullying Institute is pushing a proposed Healthy Workplace Bill that is considerably weaker than legislation adopted in other industrialized countries around the world. American workers deserve strong protection from bullying in the workplace, which causes health problems and destroys lives and families.

* The new state laws limiting public health measures will have no effect on a federal law that requires menu labeling by chains with 20 or more restaurants by 2013. But more than half of the nation’s restaurants will not be required to meet the federal rules for listing calories and fat content.

Federal Discrimination Laws

Most workplace bullying falls outside the parameters of federal discrimination laws. However, workplace abuse may be the result of illegal discrimination and, if so, you may be able to file a lawsuit seeking damages from your employer. Federal laws prohibit discrimination on the basis of age, disability, national origin, genetic information, pregnancy, race/color, religion and sex. These laws generally cover employees, applicants for employment, former employees and applicants to, and participants in, training and apprenticeship programs. An employer may include private sector and state and government entities, depending on the law. These laws also make it illegal to retaliate against a person who has complained about an equal employment opportunity violation, or participated in filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute. The U.S. Equal Employment Opportunity Commission (EEOC) enforces most of these laws (Go to: www.eeoc.gov). Here is a list of major federal laws relating to employment discrimination: RACE AND COLOR, RELIGION, NATIONAL ORIGIN, OR SEX

  • Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate on the basis of race, color, religion, national origin, or sex. It is also illegal to harass a person because of that person’s race, color, national origin or sex. Harassment goes beyond simple teasing or an offhand comment; it generally must be severe and frequent, creating an hostile or offensive work environment or resulting in an adverse employment decision (such as being fired or demoted). The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

PREGNANCY

  • Title VII was amended by The Pregnancy Discrimination Act of 1978 (PDA), which makes it illegal to discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.

EQUAL PAY

  • The Equal Pay Act of 1963 (EPA) makes it illegal to pay different wages to men and women if they perform the same work in the same workplace. The jobs must be substantially equal and all forms of compensation are covered, including salary, overtime pay, bonuses, stock options, etc. The EPA protects both men and women.
  • Title VII, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA) also prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age or disability. Unlike the EPA, there is no requirement that the jobs be substantially equal.  The Lilly Ledbetter Fair Pay Act of 2009 establishes that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began.

AGE DISCRIMINATION An egregious double standard exists for older workers in federal discrimination law. The Age Discrimination in Employment Act,  29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).” With any other type of discrimination lawsuit, it is enough to show that you were the victim of illegal discrimination.  But not so with age discrimination claims. To prevail on an ADEA claim, the U.S. Supreme Court saysyou must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).  In a Title VII discrimination lawsuit – when the grounds are discrimination on the basis of  sex, race, color, national origin or religion – it is enough to show the discrimination was a motivating factor for the adverse job action (i.e. demotion or dismissal). So … In an ADEA claim, if your employer can point to any other reason for termination– and who hasn’t been late or disagreed with their boss – your lawsuit may be thrown out of court by a judge before it even gets to a jury.  This, despite he fact that you can show that you were the victim of blatant and reprehensible age discrimination. Why are older Americans treated like second class citizens?   I suggest you ask your Congressional representative and U.S. Senator.  Personally, I can’t think of one good reason except, perhaps, that big business has better lobbyists. DISABILITY

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA),  prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. A disability is a physical or mental impairment that substantially limits one or more major life activities. Employers are required to reasonably accommodate the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or an employee, unless doing so would impose an undue hardship on the operation of the employer’s business.
  • Sections 501 and 505 of the Rehabilitation Act of 1973 make it illegal to discriminate against a qualified person with a disability in the federal government.

GENETIC INFORMATION

  • The Genetic Information Nondiscrimination Act of 2008 (GINA), which took force on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.

SEXUAL HARASSMENT

  • The Equal Employment Opportunity Commission promulgated guidelines (Sec. 1604.11) pursuant to the adoption of Title VII of the Civil Rights Act of 1964 that make sexual harassment illegal. This includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:  made either explicitly or implicitly a term or condition of an individual’s employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or; such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. With respect to fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) know or should have known of the conduct, unless it can show that it took immediate appropriate corrective action.

CITIZENSHIP STATUS AND NATIONAL ORIGIN

  • Claims of discrimination based on citizenship status and national origin are covered both by Title VII of the Civil Rights Act of 1964 and by the Immigration Reform and Control Act of 1986 (IRCA).
  • The IRCA states that employers cannot discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. Also, employers cannot discriminate on the basis of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylumees. For example, citizenship verification must be obtained from all employees, not just “ethnic” looking employees.The IRCA is implemented by the U.S. Department of Justice, Civil Rights Division, Office of the Special Counsel for Immigration Related Unfair Employment Practices.
  • Title VII prohibits discrimination on the basis of national origin. It bars discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. This law is administered by the EEOC.