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February 07, 2014
Maternity and sex discrimination: Employee fired for lactating?

Donnicia Venters claimed she was terminated from her employment in violation of the federal law prohibiting sex and pregnancy discrimination when she returned to work from maternity leave and wanted to express breast milk for her newborn. The 5th Circuit recently issued a ruling on her case. For more details, read on.

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Trial court throws claim out with the bathwater

Venters was terminated from her job as a representative/collector at Houston Funding after returning from maternity leave in February 2009. She claimed she had told the company she might want to bring a breast pump to work when she returned and express milk for her child. According to Venters, the company's vice president strongly stated in response to her request, "No. Maybe she needs to stay home longer."

Venters claimed the vice president then told her that her job had been filled because the company didn't think she was returning to work and her separation was recorded as a job abandonment. The Equal Employment Opportunity Commission (EEOC) sued on her behalf, but the trial court dismissed her claim, issuing a terse three-page opinion.

EEOC: Lactating is inherently gender-based

The EEOC appealed to the 5th Circuit, which covers Louisiana, Mississippi, and Texas. First, the agency argued that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on any sex-linked trait or function, including lactation. The EEOC asserted that Houston Funding intentionally discriminated against Venters based on a sex- specific trait or function. In short, the ability to lactate is a proxy for being female, and terminating someone for being female is a violation of the law.

Second, the EEOC argued that firing a woman for lactating violates the Pregnancy Discrimination Act (PDA). The PDA prohibits discrimination based on medical conditions or procedures related to pregnancy, including abortion and childbirth. Because lactation is encompassed within those biological and physiological issues, discrimination based on lactation is prohibited by the PDA.

The essence of sex discrimination

The 5th Circuit sided with the EEOC. The appeals court noted that firing a woman because she is lactating or expressing breast milk imposes a burden on women that men need not — indeed, cannot — suffer. That's the essence of sex discrimination.

The court noted that the PDA doesn't define "medical condition." Nonetheless, it agreed that words should be given their commonsense meaning. The court cited an earlier decision in which it found that although menstruation isn't explicitly mentioned in the PDA, it's still a medical condition related to pregnancy under the Act.

In the case cited by the court, a company had a policy requiring women on pregnancy leave to have a normal menstrual cycle before they could return to work. Because menstruation is something only women undergo, the employer's policy imposed a burden on female employees. EEOC v. Houston Funding, Ltd. II, et al.  (5th Cir., 2013).

Bottom line

You can't always go by a law's title to determine its scope. A word to the wise: Employment law is often counterintuitive.

This article was edited by H. Mark Adams (madams@joneswalker.com) and Lindsay Thomas (lthomas@joneswalker.com) of Jones Walker.


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