The federal courts are struggling with what would seem to be a simple proposition. Taking adverse action against an employee because she needs to pump breast milk is discrimination based on pregnancy and sex.
This idea has not been so simple for a couple of trial courts. In a case brought by the EEOC for a woman fired because she could not lactate at work, the employer won on a motion. The EEOC appealed the case, and the appeals court disagreed. By telling the woman that she could not have space to express her milk, and should just stay home (and then firing her for job abandonment), the employer engaged in sex discrimination, and in discrimination based on her pregnancy. Lactation is a medical condition related to pregnancy, and discriminating against the employee violates her rights under the Pregnancy Discrimination Act. EEOC v. Houston Funding, from the Southern District of Texas.
A similar thing happened in the midwest. An employee returned from her maternity leave and asked for a room to use for expressing breast milk. The company told her she had to wait for three days for the lactation room, or she could use a “wellness” room if she didn’t mind the germs and lack of a lock on the door. The hostility toward her need for an occasional private place to pump led the employee to quit.
In denying her claim, the federal trial court rejected the idea that lactation was invariably associated with pregnancy. It stated “Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production.” So, since there was no allegation that men were allowed to pump breast milk, but not the women, the employee could not show sex discrimination. Even without that “scientific fact,” though, the court said that she left not because she was lactating but because she wanted to breastfeed. A real headscratcher? It’s on appeal. Ames v. Nationwide Mutual Insurance Company.
As reported here before, part of the Affordable Care Act requires larger employers to provide space and privacy for lactation. According to the Iowa decision, however, there is no remedy available to a woman denied these rights, since an employer has the right to make the break time unpaid, so she is not denied her minimum wage.