February 16, 2012

Discrimination against lactation? Federal judge throws out nursing mom’s case

Posted in Discrimination, Gender / Sex, Nursing Mothers tagged , , , , , at 9:33 pm by Tom Jacobson

Donnecia Venters was fired by Houston Funding after she announced her intent to express breast milk for her newborn daughter in a back office at work after her maternity leave ended.  According to a lawsuit filed by the Equal Employment Opportunity Commission (EEOC), this violated Title VII of the Civil Rights Act of 1964. In its press release announcing the lawsuit, EEOC’s Houston District Director R.J. Ruff, Jr., said, “Employers cannot discriminate against working mothers because of medical conditions related to their pregnancy or childbirth.” To this, EEOC’s Houston Regional Attorney Jim Sacher added, “This lawsuit will send a message to employers that the EEOC will vigorously enforce federal law by prosecuting companies which deny equal opportunity to women.”

U.S. District Court Judge Lynn Hughes, who is presiding over the case, did not see it that way.  In what some are describing as a controversial decision (see
Lactation discrimination? Judge says firing women for breast-pumping is legal), he dismissed the suit.  In his February 2, 2012 opinion, Judge Hughes wrote, “Firing someone because of lactation or breast pumping is not sex discrimination.”  He also concluded that “…the law does not punish lactation discrimination.”

Employers should not, however, interpret Judge Hughes’ decision as a free pass for lactation discrimination because it appears likely that his decision will be appealed.  Also, based on a related report, Unlawful Discrimination Based on Pregnancy and Caregiving Responsibilities Widespread Problem, Panelists Tell EEOC, the EEOC appears poised to aggressively pursue similar cases.

Moreover, other laws protect the rights of nursing mothers.  For example, the federal Fair Labor Standards Act (FLSA) requires covered employers to provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.  Similarly, in many states, including Minnesota, employers are required by statute to provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child.  Both the FLSA and the corresponding Minnesota statute have other provisions regarding the facilities that must be provided, the employers to which the laws apply, and undue hardship exceptions.

What you need to know:  Employers must carefully consider the needs of nursing mothers.  Despite one federal judge’s dismissal of a lawsuit alleging lactation discrimination, those mothers may be protected by state and federal anti-discrimination laws.  Moreover, the FLSA and various state laws give additional rights to nursing mothers.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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