Breast-Feeding Alabama Police Officer Proved Sex, Leave Bias

From Labor & Employment on Bloomberg Law

September 8, 2017

By Patrick Dorrian

An Alabama police officer was within her rights to quit when she was denied a desk job so she wouldn’t have to wear a ballistic vest that may have rendered her unable to breast-feed, a federal appeals court ruled.

Stephanie Hicks can keep her jury win on her constructive discharge claim because lactation is a medical condition related to pregnancy under federal sex discrimination law, the U.S. Court of Appeals for the Eleventh Circuit held on an issue of first impression for the court ( Hicks v. City of Tuscaloosa , 2017 BL 314674, 11th Cir., No. 16-13003, 9/7/17 ). Hicks is a former employee of the Tuscaloosa Police Department.

The Sept. 7 ruling is “very significant” because with it the Atlanta-based Eleventh Circuit became the second federal appeals court to recognize that “breastfeeding is covered under Title VII” of the 1964 Civil Rights Act, Galen L. Sherwin said Sept. 8. The New Orleans-based Fifth Circuit previously reached the same conclusion in 2013, she said.

Sherwin is a senior staff attorney with the American Civil Liberties Union’s Women’s Rights Project, which supported Hicks as an amicus in the case. The New York-based lawyer said the Eleventh Circuit’s holding is also novel in two other important ways.

The court recognized that employers may be required to provide work accommodations to breast-feeding employees if they provide such accommodations to similarly situated non-breast-feeding workers, she told Bloomberg BNA. In other words, employers must treat accommodation requests from breast-feeding or lactating workers on the same terms as they treat other similar accommodation requests.

In addition, the decision is the first to find that it can be an unlawful constructive discharge to require a woman to make the “impossible choice” between following doctor’s orders on protecting her ability to breast-feed and her employer’s instructions to put herself in situations that might put her breast-feeding ability at risk, Sherwin said.

The jury was presented with evidence that Hicks was faced with such a choice when the city denied her a desk job and said she could either walk a beat with no bullet-proof vest or in a “specially fitted” one, the court said. Hicks’ doctor told the city the standard vest could cause breast infections and compromise Hicks’ ability to breast-feed. The doctor also said that Hicks believed a specially fitted vest might safeguard her breast-feeding ability but would have gaping holes and thus be ineffective and dangerous.

The decision isn’t controlling outside of the three states included in the Eleventh Circuit—Alabama, Florida, and Georgia—but it should nevertheless help a large number of nursing moms returning to the workplace, Sherwin said. She said statistics compiled by the ACLU show that there were 4 million births in 2013 nationally and that approximately 3 million women breast-feed per year. The organization found that 57 percent of new mothers returned to work in 2012 before their newborns turned 1 year old, and 40 percent did so within three months after giving birth.

The Tuscaloosa city attorney’s office didn’t respond Sept. 8 to Bloomberg BNA’s request for comment.

Hicks’ attorney, Birmingham, Ala.-based Patricia A. Gill, said Sept. 8 that the court’s “rationale is solid” and that she and her client are glad the Eleventh Circuit ruled the way it did.

Gender-Specific Condition

The court found support for its holding “that breastfeeding is a sufficiently similar gender-specific condition” to pregnancy and childbirth to be protected in the plain language of the Pregnancy Discrimination Act amendments to Title VII. Congress’ intent in passing the PDA also supports the conclusion that unequal treatment based on a female employee’s breast-feeding or lactation needs is illegal sex discrimination, the court said.

“We have little trouble concluding that Congress intended the PDA to include physiological conditions post-pregnancy,” Judge Charles Reginald Wilson wrote. A contrary conclusion would render the pregnancy discrimination amendments to Title VII a “nullity,” he said.

Moreover, federal trial courts throughout the country have adopted the Fifth Circuit’s reasoning in its 2013 decision that lactation is pregnancy related and thus covered by Title VII, Wilson added.

No federal appeals court has ruled to the contrary since the 1978 passage of the PDA, Gill told Bloomberg BNA.

Young Applied in Breast-Feeding Context

The Eleventh Circuit said it wasn’t holding that employers must change breast-feeding workers’ job duties or make other changes to accommodate their medical needs. As the U.S. Supreme Court ruled in Young v. United Parcel Service, Inc., pregnant workers and those with pregnancy-related conditions must be treated the same as workers who aren’t pregnant or who don’t have pregnancy-related conditions, the appeals court said.

But the court nevertheless recognized vital protections for working mothers in finding that employers must accommodate breast-feeding workers in the same way they do for non-breast-feeding employees who are similar in their ability or inability to work, Sherwin said. That was the case with Hicks, she said, as there was no dispute that the city routinely provided desk jobs as accommodations to other employees with temporary injuries.

“The jury said that was sex discrimination and the appeals court agreed,” Sherwin said.

In addressing that issue, the Eleventh Circuit became the first federal appeals court to apply Young’s holding in the breast-feeding context, she said. Young involved a worker who sought accommodation while pregnant.

“That puts to rest the notion that it’s special treatment” to accommodate breast-feeding workers when other workers with different but similar limitations are being accommodated, Sherwin said.

Finding of Bias in Reassignment Also Upheld

Hicks also presented sufficient evidence to support the jury’s finding for her on her claims that she was reassigned when she returned from pregnancy-related leave because of her sex and in retaliation for exercising her rights under the Family and Medical Leave Act, Wilson said.

He pointed to the close timing of events. Hicks was written-up on her first day back after giving birth, despite receiving an “exceeds expectations” performance review from her supervisor, Lt. Teena Richardson, before her pregnancy leave. Hicks was then reassigned to a patrol beat seven days later, he said.

In addition, Richardson was overheard coarsely stating that she would force Hicks out of her job because Hicks took 12 weeks of FMLA leave rather than the six weeks Richardson told her to take, the court said.

Judges Kevin C. Newsom and Lisa Wood joined the opinion.

Julie L. Love in Tuscaloosa, Ala., also represented Hicks. Christopher L. McIlwain of Hubbard Wiggins McIlwain & Brakefield P.C. in Tuscaloosa and James P. Woodson III of the city attorney’s office represented Tuscaloosa. The Center for WorkLife Law in San Francisco also supported Hicks as an amicus.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.


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