Fifth Circuit Says Firing Woman for Lactating, Expressing Milk Is Title VII Sex Discrimination

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By Patrick Dorrian  

A Houston collections company that allegedly discharged a woman because she was lactating and had asked if she could express breast milk at work may be liable for sex discrimination under Title VII of the 1964 Civil Rights Act, the U.S. Court of Appeals for the Fifth Circuit ruled May 30 (EEOC v. Houston Funding II Ltd., 5th Cir., No. 12-20220, 5/30/13).

Reviving the Equal Employment Opportunity Commission's lawsuit on behalf of Donnicia Venters, the court held that subjecting a female employee to an adverse employment action because she is lactating or expressing breast milk “clearly imposes upon women a burden that male employees need not--indeed, could not--suffer” and thus would violate Title VII.

The appeals court also rejected the notion that lactation is not a “related medical condition of pregnancy” for purposes of the Pregnancy Discrimination Act. The PDA expressly amended Title VII in 1978 to clarify that discrimination on the basis of pregnancy, childbirth, or a related medical condition is considered prohibited sex bias under Title VII, the court said.

“It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child,” Judge E. Grady Jolly wrote. He found that the term “medical condition” is commonly defined as including any physiological condition.

As a result, EEOC successfully established a case of Title VII discrimination against Houston Funding II Ltd. and Houston Funding Corp., the appeals court ruled, reversing a lower court's dismissal of the claim and remanding the case.

EEOC Applauds Ruling, Company Weighs Options

EEOC in a May 31 statement lauded the appeals court's ruling.

“Pregnancy discrimination is something that the EEOC takes seriously and sees far too often,” EEOC General Counsel P. David Lopez said. “We are gratified that the Fifth Circuit gave plain meaning to the words of the [PDA] and ruled in our favor that discrimination on the basis of lactation is discrimination on the basis of sex.”

Claudia Molina, a trial attorney in EEOC's Houston district office, added, “Now that the Fifth Circuit has reaffirmed the EEOC's long-standing position about the broad coverage of the [PDA], we look forward to trying the underlying case.”

Houston Funding, through its attorney Mark J. Oberti of Oberti Sullivan in Houston, “respectfully disagreed” with the Fifth Circuit's decision.

“We are exploring our remedies within the appellate system, but at a minimum, if necessary, we will fully defend the case at the trial court level,” Oberti told BNA May 31.

Medical Complications Led to Longer Leave

Venters worked for Houston Funding as an account representative/collector. About two years into her tenure, she took a leave of absence to have a baby.

Houston Funding, the court said, did not have enough employees to be covered by the Family and Medical Leave Act and did not have a maternity leave policy.

Because of medical complications, Venters ended up staying home through mid-February 2009. However, while she was away, she contacted her supervisor, Robert Fleming, at least once a week and also spoke with other managers.

During one of her conversations with Fleming, Venters mentioned that she was breast-feeding her baby. She also requested that Fleming ask Houston Funding's limited partner Harry Cagle if she could use a breast pump at work when she returned from leave.

Request Met With Strong 'No.'

According to Fleming, when he put Venters's question to Cagle, he “responded with a strong 'No,' ” and said, “Maybe she needs to stay home longer.”

Venters subsequently called Cagle on Feb. 17, 2009, to inform him that her doctor had released her to return to work. She also mentioned that she was lactating and asked whether she could use a back room in the office to pump breast milk after she returned.

Following a long pause, Cagle responded by telling her that her position had been filled, Venters alleged. “The record reflects no denial of this conversation,” Jolly observed.

Three days later, Houston Funding mailed a termination letter to Venters that was dated Feb. 16, 2009. The letter cited job abandonment as the reason for the discharge, and stated she was fired effective Feb. 13.

Venters filed a sex discrimination charge with EEOC, which sued Houston Funding on her behalf under Title VII. The commission asserted that Venters was fired on the basis of sex, including pregnancy, childbirth, or related medical conditions.

The U.S. District Court for the Southern District of Texas granted Houston Funding's motion for dismissal in February 2012. The court found that even if Venters's allegations were true, terminating an employee based on lactation or breast-pumping is not prohibited sex discrimination under Title VII and that lactation is not a pregnancy-related medical condition (30 HRR 185, 2/20/12).

Appeals Court Cites Precedent in Reversing

Jolly observed that since Congress passed the PDA in 1978, courts have “interpreted Title VII to cover a far wider range of employment decisions entailing female physiology.” In Harper v. Thiokol Chemical Corp. ( 619 F.2d 489, 23 FEP Cases 61 (5th Cir. 1980)), he said, the Fifth Circuit held that an employment policy that required women who took pregnancy leave to sustain a normal menstrual cycle before returning to work violated Title VII because it imposed unequal burdens on male and female employees.

Harper therefore supports EEOC's position that firing Venters because she was lactating or expressing breast milk likewise constitutes a violation of Title VII, the appeals court concluded. It also found that Harper supports the conclusion that lactation, like menstruation, is a pregnancy- or childbirth-related medical condition for purposes of the PDA.

Menstruation is a normal aspect of female physiology that is interrupted during pregnancy but resumes shortly after the pregnancy has ended, Jolly said. He found that lactation also is a normal aspect of female physiology, which is initiated by pregnancy and concludes sometime after the pregnancy has ended.

Accordingly, “[i]f an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman's post-pregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination,” Jolly wrote.


Text of the opinion is available at

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