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Is an Employer's Refusal to Allow Lactation at Work Pregnancy Discrimination?


You just had a baby and you need to express milk while at work. You ask your boss if it's ok to use a private room for a half hour. Not only does he refuse, but he then fires you. Do you have a pregnancy discrimination case, even though you are no longer pregnant?

No, according to a federal court in Texas. Thankfully, that court was overruled by a Federal Court of Appeals. The case was brought by Donnicia Venters against her employer, Houston Funding Corp. After taking a maternity leave in 2009, Venters requested that she be allowed to express milk in a back room when she returned to work. Her boss refused and fired her. She sued.

U.S. District Judge Lynn N. Hughes of Houston dismissed the suit against Houston Funding on the grounds that "lactation is not pregnancy, childbirth, or a related medical condition." He said that "firing someone because of lactation or breast-pumping is not sex discrimination." Judge Hughes, who is male, suggested that "pregnancy-related conditions" end on the day that a mother gives birth.

The Court of Appeals reversed the decision on the basis that lactation is a covered condition under the Pregnancy Discrimination Act (which amended Title VII to add pregnancy to the list of prohibited forms of discrimination). A previous decision had found that requiring a female employee to have returned to a normal menstrual before being allowed to return to work was a violation of Title VII. According to the court, "Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly after the pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman's post-pregnancy menstrual cycle… is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination".

The case was sent back to the lower court for trial, but it was settled before the trial started for $15,000. Not a huge amount, but we can thank her for setting a precedent in the law.
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