On Monday, in EEOC v. Houston Funding II, Ltd., the
EEOC argued to the Fifth Circuit that Title VII protects women from
being fired for lactation and breast pumping at work. The
charging party -- Donnicia Venters – was fired allegedly
for stating her intent to use a breast pump upon her return from
pregnancy leave. The EEOC advanced two claims:
(a) violation of Title VII's prohibition against sex
discrimination, and (b) violation of the Pregnancy Discrimination
Act, which bars employment discrimination based on "pregnancy,
childbirth, or related medical conditions."
The EEOC argued that discrimination based on breastfeeding or
any other sex-specific trait is per se sex discrimination, even
apart from the PDA. The EEOC' s position has serious
internal contradictions. Of course breastfeeding is a
sex-specific trait, but no more so than pregnancy and
childbirth. If discrimination based on a sex-specific trait
constitutes sex discrimination barred under Title VII, then what
does the Pregnancy Discrimination Act add? Apparently,
the EEOC believes the PDA is redundant and prohibits nothing not
already prohibited under Title VII's ban against sex
discrimination.
In General Electric Company v. Gilbert, 429 U. S. 125
(1976), the Supreme Court held that discrimination based on
pregnancy was not discrimination based on sex (at least not
disparate treatment). The case involved health
insurance benefits that excluded coverage for pregnancy.
Congress responded to the decision with the Pregnancy
Discrimination Act.
Oddly, in Houston Funding, the EEOC' s primary
argument was under Title VII, not the PDA, which was its secondary
argument. Gilbert, which is still good law to the
extent not superseded by the PDA, closes the door on the EEOC's
Title VII argument. The EEOC mentions Gilbert but
spends many pages dancing around the precedent, essentially arguing
that Gilbert is bad law, albeit without using those
words.
The better argument is that breastfeeding is protected under the
PDA. To prevail on that claim, the EEOC must persuade the
court that the need to breastfeed or use a breast pump is a
"medical condition" related to pregnancy. That
statutory language may not be ideal, but neither would it require a
hernial reach to accept that producing breast milk is a
"medical" condition caused by pregnancy and
childbirth?
The Fair Labor Standards Act provides new legal protection that
Venters did not have when she gave birth to her baby in 2008.
Effective March 23, 2010, the Patient Protection and Affordable
Care Act, also known as the Healthcare Reform Act (HRA), amended
the FLSA to require most employers to provide a nursing mother
break time to pump. Covered employers must provide reasonable
break time for an employee to express breast milk for her nursing
child for one year after the child's birth each time the
employee has need to express milk. See 29 U.S.C. § 207(r).
Employers must also provide a place, other than a bathroom, that is
shielded from view and free from intrusion from co-workers and the
public, which may be used by an employee to express breast milk.
Id. The FLSA amendment does not require employers to
pay employees for such break time. Id.
However, presently before the Supreme Court is a constitutional
challenge to certain provisions of the HRA (not the FLSA
amendments). It is possible, albeit unlikely, that the
Supreme Court's decision will invalidate the entire HRA.
This article is for general information and does not include
full legal analysis of the matters presented. It should not be
construed or relied upon as legal advice or legal opinion on any
specific facts or circumstances. The description of the results of
any specific case or transaction contained herein does not mean or
suggest that similar results can or could be obtained in any other
matter. Each legal matter should be considered to be unique and
subject to varying results. The invitation to contact the authors
or attorneys in our firm is not a solicitation to provide
professional services and should not be construed as a statement as
to any availability to perform legal services in any jurisdiction
in which such attorney is not permitted to practice.
Duane Morris LLP, a full-service law firm with more than 700
attorneys in 24 offices in the United States and internationally,
offers innovative solutions to the legal and business challenges
presented by today's evolving global markets. Duane Morris LLP,
a full-service law firm with more than 700 attorneys in 24 offices
in the United States and internationally, offers innovative
solutions to the legal and business challenges presented by
today's evolving global markets. The
Duane Morris Institute provides training workshops for HR
professionals, in-house counsel, benefits administrators and senior
managers.
Specific Questions relating to this article should be addressed directly to the author.
The Departments of Labor, Treasury, and Health & Human Services have issued new guidance on the content requirements for health plan summaries of benefits and coverage ("SBCs").
E-mail can be powerful evidence in a dispute, and whether employers and criminal investigators may use employee e-mail in litigation proceedings is a hot topic. A recent New York federal court decision outlined the current law in this area.
I wrote two years ago about the challenges employers face when an employee attributes his or her misconduct to a disability.
I wrote two years ago about the challenges employers face when an employee attributes his or her misconduct to a disability.
Twitter
Facebook
Digg 
