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What is Lactation Discrimination?

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Although there are various forms of discrimination, it is generally defined as a failure to treat all equally. In the employment context on the federal level, the United States Equal Employment Opportunity Commission (EEOC) is responsible for the administrative enforcement of the relevant discrimination laws in the workplace. Although at times, the EEOC does seek enforcement of the relevant discrimination laws in federal court.

Lactation discrimination is a fairly new area of sex (gender) discrimination under Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978; it is essentially when an employer discriminates against a female employee who is lactating or expressing milk.

In the case of the Equal Employment Opportunity Commission v. Houston Funding II L.L.C, the court determined that lactation discrimination is unlawful sex discrimination.

Donnicia Venters worked as an account representative/collector for Houston Funding from March 2006 until she was fired on February 2009. In December 2008, she took a leave of absence to have her baby. Venters did not specify a date of return. The company had no maternity leave policy. While on maternity leave, she communicated with her supervisor and requested accommodation once she returned to work. She requested use of a back room to pump breast milk as she was breastfeeding her child. Venters was told that her accommodation could not be met. Frankly, one of the comment partners said “No. Maybe she needs to stay home longer.” When she called to return to work, she was told that her position was filled. The employer thereafter sent a termination letter due to job abandonment.

She filed a Charge of Discrimination with the EEOC alleging sex (gender) discrimination. The employer responded by saying that Venters never contacted her supervisor or attempted to return to work. After investigating her complaint, the EEOC filed a lawsuit in federal district against Houston Funding alleging in that she was unlawfully discriminated against based upon sex, including her pregnancy, childbirth, or related medical conditions.

The defendant moved for and was granted summary judgment with the district court ruling that “[f]iring someone because of lactation or breast-pumping is not sex discrimination,” and that lactation is not a related medical condition of pregnancy.” The EEOC appealed.
Upon review by the Fifth Circuit Court of Appeals it determined that:

“lactation is a related medical condition of pregnancy for purposes of the PDA (Pregnancy Discrimination Act). Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth.” The Court of Appeals remanded the case back to the district court to resolve with a trial. This case was a victory for pregnant employees who may face sex (gender) discrimination by employers.

Based on statistical data, the EEOC has a long fight ahead of it. According to the EEOC, they received 99,412 private sector workplace discrimination charges during fiscal year 2012, a slight decrease from the previous year. However, the year-end data also showed that “retaliation, race and sex discrimination, which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges.”

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