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Terminating Employees for Lactating Is Sex Discrimination

By Brandon Briggs and Katherine A. Phillips  6/20/2013
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An employer who terminates a woman for lactating or wanting to express breast milk at work violates Title VII of the 1964 Civil Rights Act and the Pregnancy Discrimination Act (PDA), according to the 5th U.S. Circuit Court of Appeals.

Donnicia Venters was an account representative for Houston Funding from March 2006 until her termination in February 2009. Houston has no maternity-leave policy and is too small to be covered by the Family and Medical Leave Act (FMLA). In December 2008, Venters took a leave of absence to have her baby. She informed Harry Cagle, Houston’s manager, that she would return to work as soon as her physician said she was ready.

Due to medical complications, Venters was out of work until mid-February. During her absence, Venters contacted her employer regularly, as was reflected by her cellphone records. The account representative informed her supervisor, Robert Fleming, that she was breast-feeding and requested that he ask Cagle if she could express milk at work. Fleming reported back to Venters that after Cagle responded with a strong no, he added that maybe “Venters needed to stay home longer.”

On Feb. 17, 2009, Venters informed Cagle that her doctor said she could return to work. She then asked the company manager if she could use a back room at work to pump milk. After a long pause, he told Venters that Houston Funding had filled her position On Feb. 20 the company mailed Venters a termination letter dated Feb. 16 that indicated she was discharged for job abandonment, effective Feb. 13.

Venters filed a discrimination suit with the Equal Employment Opportunity Commission (EEOC), alleging sex discrimination. Houston responded by claiming that Venters had not contacted her supervisor during her leave and had not attempted to return to work. After investigating, the EEOC sued the company for violating Title VII and the PDA by dismissing Venters for lactating and wanting to express milk at work. The district court dismissed the plaintiff’s claims, finding that firing a worker for lactating or breast-pumping is not sex discrimination and that lactation is not a medical condition related to pregnancy. The court of appeals disagreed.

After relying on medical and lay definitions, the 5th Circuit concluded that, for purposes of the PDA, lactation is a medical condition related to pregnancy, and, thus, terminating an employee who is lactating and wanting to express breast milk in the workplace violates Title VII and the PDA. The court also found that Houston’s proffered reason for terminating Venters—for job abandonment— was pretextual.

EEOC v. Houston Funding II Limited, 5th Cir. No. 12-20220 (May 30, 2013).

Professional Pointer: Employers not covered by the FMLA must still be cognizant of an employee’s medical condition related to pregnancy when she returns to work after maternity leave.

Brandon Briggs is employed with Malone, Thompson, Summers & Ott LLC, and Katherine A. Phillips is an attorney with Malone, Thompson, Summers & Ott LLC, the Worklaw® Network member firm in Columbia, South Carolina.  

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