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Fifth Circuit Finds Breastfeeding Is 'Related' to Pregnancy

While several new health studies concerning breastfeeding are making the rounds, the topic has also been generating headlines in the employment law context, thanks to a recent Fifth Circuit ruling (as reported in Texas Lawyer's Tex Parte Blog) involving the firing of a woman because she wanted to use a breast pump at work.

According to the opinion, when Donnicia Venters spoke to her boss at Houston Funding about using a breast pump at work upon her return from maternity leave, her request was met with a long pause, then the news that her position had been filled. The Equal Employment Opportunity Commission brought a Title VII action against Houston Funding, alleging the company had discriminated against Venters based upon her sex.

U.S. District Court Judge Lynn Hughes (who has recently made news and caught bloggers' attention for allegedly racially insensitive comments) granted summary judgment in favor of Houston Funding, finding that Venters' firing did not constitute sex discrimination because "lactation is not pregnancy, childbirth, or a related medical condition." While "cramping, dizziness, and nausea" are conditions related to pregnancy, Hughes wrote, lactation does not make that list. After Venters gave birth, the opinion stated, "she was no longer pregnant and her pregnancy-related conditions ended."

Some took issue with this conclusion (including the Texas Medical Association), and the Fifth Circuit has now registered its disagreement, vacating and remanding Hughes' opinion. The circuit found that the EEOC's claim that Venters was fired "because she was lactating or expressing milk" stated a cognizable sex discrimination claim under Title VII. "An adverse employment action motivated by these factors clearly imposes upon a woman a burden that male employees need not -- indeed, could not -- suffer," the opinion states.

The Fifth Circuit held that "lactation is a related medical condition of pregnancy" under the Pregnancy Discrimination Act. However, in a concurring opinion, Fifth Circuit Judge Edith Jones distinguished between Venters' case and one in which a female employee might request "special accommodations" because of lactation, which Jones said would not be guaranteed under the act.

"It follows that if Venters intended to request special facilities or down time during work to pump or 'express' breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit," Jones wrote. "Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday."

On the HealthLawProf Blog, law professor Leslie Francis writes that, although the Fifth Circuit ruling "is apparently a favorable one for women and children, it also reveals ongoing mismatches between anti-discrimination law in the US and the health needs of workers and their families."

"The PDA prohibits differential treatment on the basis of sex but does not require any accommodations for pregnancy or lactation," Francis states. "Venters won not because she asked for time to express milk but because her employer disapproved of her breastfeeding." Anti-discrimination law, she writes, "all too often regard[s] breastfeeding as a 'lifestyle' rather than a health issue."

In a post about the case on the ACLU's Blog of Rights, Galen Sherwin echoes this concern about the lack of legal support for workplace accommodations, writing that, despite "overwhelming public health justifications for breastfeeding, women who want to continue nursing when they return to paid work often face obstacles that force them to choose between their jobs and what they think is best for their babies."

"At a fundamental level, workplace policies that are structured around an “ideal” worker who never gets pregnant, gives birth, or breastfeeds -- in other words, a male worker -- look an awful lot like institutionalized sexism," Galen writes.

Posted by Laurel Newby on June 10, 2013 at 05:11 PM | Permalink | Comments (1)

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