eLABORate: Fifth Circuit Holds Firing for Expressing Breast Milk Violates Title VII

June 07, 2013

In EEOC v. Houston Funding II, Ltd., the Fifth Circuit Court of Appeals held for the first time that terminating an employee because she is lactating or expressing breast milk constitutes unlawful sex discrimination in violation of Title VII of the Civil Rights Act.

The plaintiff, Donnicia Venters, alleged that while discussing her return from pregnancy leave, she told her supervisor of her intent to express milk via a breast pump at work. Venters said that the supervisor immediately responded that her position had been filled and terminated her employment. A lower court dismissed the lawsuit, holding that Title VII did not prohibit "firing someone because of lactation or breast-pumping." The Fifth Circuit, which hears appeals from federal courts in Texas, Louisiana, and Mississippi, reversed that decision and sent the case back for trial. The ruling is a significant victory for the EEOC, which has made so-called "caregiver discrimination" a focus of its enforcement efforts in the last several years, and has put a particular recent emphasis on pregnancy discrimination.

In its unanimous opinion, the three judge panel explained that Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination "on the basis of pregnancy, childbirth, or related medical conditions." The court observed that the term "medical conditions" is extremely broad and cited a prior case in which it held the term encompasses the resumption of menstruation following pregnancy. The court said it could find no reason why lactation or expressing breast milk would not also be considered medical conditions related to pregnancy. Thus, it held that termination of an employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.

The court noted that neither Title VII nor this ruling requires employers to provide special accommodations for women expressing breast milk. Indeed, the court suggested in a footnote that if the employer had argued that it fired the employee because she demanded special accommodations, the result might have been different. However, employers should think carefully before relying on such distinctions. For example, if an employer chose to provide an accommodation to employees generally, EEOC might argue that Title VII forbids denying that accommodation to employees who are expressing breast milk. Thus, a lactating employee might argue that others are allowed to take short breaks in a private place, and that she only seeks the same thing.

Given the EEOC's focus on caregiver issues generally and pregnancy discrimination in particular, it is a good time for employers to review and update their policies in these areas. If you have questions or concerns, contact any member of the Phelps Dunbar labor and employment group.