Fifth Circuit Rules in Favor of the EEOC on Lactation

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Consistent with its Strategic Enforcement Plan, the EEOC continues to pursue litigation of Family Responsibility Discrimination (FRD) issues as a teaching enforcement technique. The Fifth Circuit recently ruled in the EEOC’s favor by determining that “lactation” (not necessarily breastfeeding) is a condition of pregnancy, and thus prevents employers from taking adverse action against a female employee because she is lactating. See EEOC v. Houston Funding II LLC, (No. 12-20220).

The female employee was fired when she inquired as to whether she would be able to pump milk in the back room upon return from childbirth. The employer argued that there was no such thing as “breast pump discrimination” but the Fifth Circuit focused upon the physiological change that the female body incurs as a result of pregnancy, which is protected under the Pregnancy Discrimination Act under Title VII. Note that the acts in question occurred in 2009, before the FLSA implemented protection for breast pumping at the workplace, but permits employers with less than 50 employees may be able to establish the accommodation would pose an undue hardship. FRD issues and the various applicable statutory schemes applicable will continue to require close monitoring for businesses of all sizes.

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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