Fifth Circuit rules lactation discrimination is illegal sex discrimination

Last week the Fifth Circuit Court of Appeals ruled in EEOC v. Houston Funding II, Ltd. that discriminating against employees on the basis of the need to express breast milk following the birth of a child violated Title VII’s prohibition on sex-based discrimination.

The district court ruled firing based on lactation and breast pumping was not prohibited because neither was a medical condition related to pregnancy. The appellate court overruled that lactation is a burden only imposed on women; therefore an adverse employment action on the basis of lactation would be unlawful sex discrimination under the Pregnancy Discrimination Act’s amending of Title VII. The court also stated that lactation is a medical condition under the Pregnancy Discrimination Act, entitled to Title VII protection. If you believe your employer discriminated against you on the basis or pregnancy or childbirth then you should speak with a Texas employment lawyer ASAP.

Texas employment attorney on pregnancy discrimination laws in Texas

Downtown Fort Worth Law FirmPregnancy falls into a unique position within employment law. It is not a disability, so the Americans with Disabilities Act (ADA) does not apply. Lactation is also not a disability and does not enjoy ADA protections. Certain medical complications resulting from a pregnancy can be disabilities subject to ADA protections.

The Family and Medical Leave Act (FMLA) protects pregnancy leave time but generally not periodic breaks for lactation. Originally, pregnancy was not clearly protected under Title VII, the federal law banning discrimination on several protected statuses, as sex-based discrimination.

Congress amended Title VII with the Pregnancy Discrimination Act of 1978 that included discrimination on the basis of pregnancy, childbirth and pregnancy-related medical conditions as prohibited forms of sex discrimination. The Pregnancy Discrimination Act does not provide special protections for mothers. It requires employers treat pregnant women or recently gave birth the same as employees with short term medical conditions.

Although it has been thirty-five years since the Pregnancy Discrimination Act passed, it has only been in the past several years that a consensus formed within the judiciary and legislatures that lactation is a medical condition related to the pregnancy and sometimes women need a little flexibility to take care of it at work.

ACA additions to pregnancy discrimination protections under the FLSA

One key protection in recent years came by way of the Affordable Care Act (PPACA), also known as Obamacare. PPACA amended the Fair Labor Standards Act (FLSA) to create some workplace protections for lactating mothers. Under the now-amended FLSA, employers must provide a private area for lactating mothers to express breast milk.

This private location cannot be a restroom. It requires employers to provide reasonable unpaid break time for expressing breast milk for up to one year following birth. If employers offer paid break time for other purposes then the employer may not treat the lactating mother differently. It will have to make lactation breaks paid breaks as well.

FLSA issues with pregnancy discrimination

The protections created by PPACA are not universal. These protections apply only to non-exempt employees. Most salaried employees do not enjoy these protections. Employers with less than fifty employees do not have to offer breaks for expressing breast milk if they would cause undue hardship.

However, the Pregnancy Discrimination Act still applies to applicable employers. The PDA requires the lactating mother receives the same break opportunities as other employees with short term medical conditions. The Pregnancy Discrimination Act is subject to Title VII’s eligibility requirements. These require at least fifteen employees within a twenty week period.

Fitting these protections together is not always a simple task. Overlap exists between the laws. There are also gaps. If your employer discriminated against you then you should speak with an employment attorney in Texas.

Schedule a consultation with Texas employment attorney

Sex discrimination claims, including sexual harassment and pregnancy discrimination, can be difficult claims. Employment discrimination law is highly technical and a small number of facts can be the difference between winning and losing. You should consult with an employment lawyer about potential sex discrimination claims. You might be in a situation where you have no choice but to take legal action against an employer. Or your goal may be to avoid that situation. In either situation an employment attorney can help you make informed decisions about your next steps and represent you if necessary.

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