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 Gilbert, which is still good law to the extent not superseded by the PDA, closes the door on the EEOC's Title VII argument.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.
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