Title VII Required Temporary Duty and Time to Express Breast Milk

By John W. Simmons October 13, 2021
Frontier Airlines Plane

Absences related to pregnancy apart from the Family and Medical Leave Act (FMLA) or other leave laws may be protected under Title VII of the Civil Rights Act of 1964 from accrual of points or discipline under attendance policies, and pregnant employees may also have to be accommodated with temporary jobs if other employees are accommodated. Further, breastfeeding employees may have the right to breaks to express milk, according to the U.S. District Court for the District of Colorado.

Four flight attendants sued Frontier Airlines Inc., alleging pregnancy discrimination under Title VII. The plaintiffs alleged discrimination based on the employer assigning points under an attendance policy for absences resulting from pregnancy or breastfeeding when the absence was not approved FMLA leave and for the employer denying temporary job reassignment for pregnant flight attendants who were unable to fly.

The employer provided temporary reassignment accommodations for flight attendants with medical conditions unrelated to pregnancy or birth, including on-the-job injuries. The plaintiffs also alleged the employer failed to provide break time or a location besides the bathroom for employees who were expressing breast milk. The employer did provide break time for other physiological needs, such as restroom breaks.

On the employer's motion to dismiss the intentional discrimination claim, the court reasoned that the only point at issue was whether the employer had accommodated others who were similar in their ability or inability to work. The plaintiffs claimed the employer denied their request for ground assignments while providing the same accommodation for flight attendants who could not fly for a nonpregnancy-related medical condition or disability. Because the employer made this accommodation for flight attendants with job-related injuries or other types of disabilities besides pregnancy, the court ruled that the plaintiffs stated a claim for failure to accommodate.

The plaintiffs' Title VII disparate impact claim asserted that the employer's policies or practices impacted pregnant or breastfeeding employees more harshly and that policies were not justified by business necessity. For an impact claim, the plaintiffs had to identify a specific policy or practice that resulted in a significant disparate impact on a protected group. The court found the plaintiffs met these requirements. The court held that the accrual of attendance points for absences that were pregnancy-related, despite the policy of not assigning points for excused absences under the FMLA and the impact on pregnant flight attendants compared to other flight attendants, based on the need for pregnancy-related medical care and breastfeeding, provided a basis for relief under Title VII.

The plaintiffs alleged that all pregnant flight attendants were harmed by the failure to provide pregnancy-related accommodations, while no flight attendants who weren't pregnant were harmed. Similarly, the plaintiffs alleged that virtually all breastfeeding flight attendants who required accommodations were harmed by the failure to provide adequate pumping accommodations, while no flight attendants who weren't breastfeeding were impacted by this policy.

The employer argued that none of the plaintiffs was still pregnant or breastfeeding at the time, so they couldn't sue. The court held that the plaintiffs could assert a claim for damages because each had been injured when they were pregnant or breastfeeding. Further, the plaintiffs also sought prospective injunctive relief, and the court held the plaintiffs had standing for this relief because there was a reasonable expectation the employer's conduct would occur again, either for the plaintiffs or for members of their proposed class.

Hodgkins v. Frontier Airlines Inc., D. Colo., No. 1:19-cv-03469 (July 14, 2021).

Professional Pointer: Title VII requires that "women affected by pregnancy, childbirth or related medical conditions" must be treated the same as persons not so affected but similar in their ability to work. Thus, an employer may not deny temporary reassignment, light duty or any other benefit to a pregnant employee when it is available for a nonpregnant employee who has a similar ability to work. Under Title VII, an employer may also be required to provide break time to express milk for breastfeeding employees.  

John W. Simmons is a member of Simmons Law Firm, PLLC, the Worklaw® Network member firm in Memphis, Tenn.



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