Emerging protections for nursing mothers in the workplace.

• Author: Hollifield, Travis R.
• Position: Labor and Employment Law

Working parents unquestionably have numerous, and often competing, priorities to manage. While balancing the needs of their careers with familial obligations, tensions between working parents and their employers can often arise. Regrettably, while both male and female parents can face difficult issues balancing work and childcare duties, certain persistent stereotypes and biases about a woman's role in the workplace make some challenges unique to them. In the decades since the enactment of Title VII of the Civil Rights Act (Title VII) in 1964 and the Pregnancy Discrimination Act (PDA) in 1978, federal and state legislators have continued to address working women's unique concerns and struggles in an attempt to achieve some semblance of equality of treatment in the labor force. Courts, in turn, have sought to apply the fruits of these legislative endeavors to factual circumstances that can present unique and vexing legal issues. This article focuses on one such issue, that of the emerging protections for nursing mothers in the workplace.

In recent years, courts have adjudicated claims involving allegations of discriminatory treatment based on the needs of new mothers who are lactating and need to express breast milk for their children during working hours. Three watershed moments in the development of legal protections for working and lactating mothers occurred in 2013 and 2015 respectively. First, in 2013, the Fifth Circuit Court of Appeals became the first federal appellate court to explicitly hold that lactation discrimination constitutes pregnancy and sex discrimination in violation of Title VII and the PDA. (1) Second, in 2015, the U.S. Supreme Court recognized that working women who are pregnant or have pregnancy-related medical conditions may pursue a "failure to accommodate" theory against their employers under Title VII. (2) Finally, and also occurring in 2015, the Equal Employment Opportunity Commission (EEOC) formally adopted the policy position that lactation is protected by Title VII/PDA. (3) These seminal events addressing lactation discrimination evolved as follows.

The Fifth Circuit's Lactation Discrimination Holding

In EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013), an account representative employee returning from maternity leave named Donnicia Venters notified her employer that she was lactating and asked whether there were any rooms available for her to pump at work. (4) The employer summarily terminated her. (5) During the EEOC's investigation into the employee's charge of discrimination, the employer claimed that Venters was fired because she had not contacted her supervisor during her maternity leave and did not attempt to return to work. (6) The EEOC nevertheless elected to bring a lawsuit against the employer in a Texas federal district court alleging violation of Title VII and PDA under a sex and pregnancy discrimination theory based on Venters' lactation. (7) The district court granted summary judgment to the employer finding that "[f]iring someone because of lactation or breast-pumping is not sex discrimination," and that lactation is not a medical condition related to pregnancy. (8) The Fifth Circuit disagreed with both findings and reversed.

The Fifth Circuit held that since the enactment of the PDA's (1978) amendment of Title VII, with its language prohibiting discrimination against "pregnancy, childbirth, and related medical conditions," the courts have interpreted Title VII to cover a wide range of employment decisions entailing female physiology. (9) Analogizing to an earlier Fifth Circuit case that found that discrimination against a person who was denied employment opportunities because her menstrual cycle and not yet re-emerged after pregnancy was prohibited under Title VII/PDA, the court determined that lactation and expressing milk are indeed aspects of female physiology that, like menstruation, are "related medical condition(s)" of pregnancy for purposes of the statute. (10) After describing the lactation process in some detail, the Fifth Circuit found that "lactation is the physiological result of being pregnant and bearing a child" and that it is a "normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter." (11) As a result, the court held that discrimination against lactation is contrary to Title VII/PDA, and the case was remanded to the district court with directions to proceed with trial. (12)

While this was certainly a victory for Venters and for the many women who need both to be at work and lactate simultaneously, a concurring opinion by one of the circuit court panel members rejected the idea that employers are required to provide any "accommodations" under Title VII/PDA to women who need special facilities and down time during work to express breast milk. (13) While this doubt was perhaps a legitimate position to be taken, as discussed next, the issue of whether and to what extent employers must provide accommodations to pregnant workers or those with pregnancy-related medical conditions was substantially resolved by the U.S. Supreme Court in 2015.

The Duty to Accommodate Pregnant Workers

In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), Peggy Young was a part-time driver for UPS. After suffering several miscarriages, she became pregnant again. Young's doctor placed her on certain lifting restrictions for the duration of the pregnancy. UPS responded by telling her she could not work while on a lifting...