Lactation Discrimination Is not Sex Discrimination: Judge

Lactation discrimination is not sex discrimination, said a federal judge in upholding the termination of a woman who claims she was fired because she asked for accommodations to breast-feed her baby.

According to the Feb. 9 decision by the federal district court in Houston in Equal Employment Opportunity Commission vs. Houston Funding II Ltd., Donnicia Venters took a leave of absence in December 2008 to have her baby girl. She did not discuss with anyone about how long she would be gone, or when she expected to return.

On Feb. 10, 2009, several employees including a vice president, decided to fire Venters, effective three days later, although no written record of the meeting is available, according to the opinion by Judge Lynn N. Hughes.

Venters, who suffered from an infection after the birth that complicated her recovery, according to the ruling, left the vice president a message by phone on Feb. 16, telling him she had her doctor’s approval to return to work.

“The next day, she called (the vice president) to tell him that she was ready to return to work and wondered if she could use a back room to pump milk,” said the ruling. She was told her spot had been filled because they had not heard from her. She subsequently received a letter telling her she was fired for job abandonment.

The EEOC “says the company fired her because she wanted to pump breast milk,” says the brief opinion. “Discrimination because of pregnancy, child birth or a related medical condition is illegal. Related conditions may include cramping, dizziness and nausea while pregnant.”

However, says the ruling, “Even if the county’s claim that she was fired for abandonment is meant to hide the real reason—she wanted to pump breast milk—lactation is not pregnancy, childbirth or a related medical condition. She gave birth on Dec. 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended.

“Firing someone because of lactation or breast pumping is not sex discrimination,” says the ruling. “Even if Venters’ claims are true, the law does not punish lactation discrimination.” The EEOC “will take nothing from” the employer, said Judge Hughes.

Houston-based EEOC trial attorney Claudia Molina-Antanaitis said the agency is considering whether to appeal the decision to the 5th U.S. Circuit Court of Appeals in Houston. She said there is strong evidence Venters had in fact been fired because of “animus against the fact she was lactating.” Houston Funding’s attorney could not immediately be reached for comment.

Commenting on the ruling, Michael J. Scimone, an associate with plaintiffs law firm Outten & Golden L.L.P. in New York, said: “We tend to agree with the EEOC’s posting that lactation is a medical condition that’s related to pregnancy, and therefore should be protected under the Pregnancy Discrimination Act.”

The Pregnancy Discrimination Act of 1978 amends Title VII of the Civil Rights Act of 1964 to say discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII, according to the EEOC.

Defense attorney Diana L. Hoover, a partner with Hoover Kernell L.L.P. in Houston, said she was puzzled by the decision and that if the EEOC appeals, “I would not be surprised if the 5th Circuit remanded the issue and reversed to the trial court.”

Employers are growing more concerned about workplace discrimination lawsuits stemming from employees’ responsibilities to their families.