Employers Can't Fire Women for Wanting to Use Breast Pumps

Venters filed a complaint with the EEOC, alleging Houston Funding II and Houston Funding Corp. (collectively Houston Funding) discriminated against her because of her sex in violation of Title VII. The EEOC filed an employment discrimination complaint on her behalf in 2011 in the U.S. District Court for the Southern District of Texas, alleging her termination violated Title VII's proscription against sex discrimination “because of her pregnancy, childbirth, or related medical conditions. ' “

Houston Funding denied the allegations in a response, and filed a motion for summary judgment, arguing that the EEOC's case failed as a matter of law because “breast pump discrimination” is not prohibited by Title VII. The trial court granted summary judgment on Feb. 2, 2012, finding that the EEOC failed to state a cognizable Title VII claim.

“Firing someone because of lactation or breast-pumping is not sex discrimination,” the trial court held.

The Appeal

The EEOC appealed to the Fifth Circuit, which found that firing a woman because she wants to use a breast pump is indeed a form of employment discrimination prohibited by Title VII.

“Given our precedent, we hold the EEOC's argument that Houston Funding discharged Venters because she was lactating or expressing milk states a cognizable Title VII sex discrimination claim,” wrote Judge E. Grady Jolly in an opinion joined by Judge James Graves. “An adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not ' indeed, could not ' suffer.”

The ruling went further, holding that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act (PDA), an amendment to Title VII that prohibits employment discrimination against pregnant women.

“Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth,” Jolly wrote. “It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child. The PDA does not define the statutory term 'medical condition' ('pregnancy, childbirth, or related medical conditions'), but '[i]t is well-settled that 'we should give words of statutes their plain meaning.'”

Judge Edith Jones wrote an opinion concurring with the judgment, but she wrote separately to point out that the ruling does not cast doubt on the court's previous holdings that denying women accommodations for using breast pumps at work does not violate Title VII.

“It follows that if Venters intended to request special facilities or down time during work to pump or 'express' breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit,” Jones wrote.

“Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.”

Attorney Comments

According to a prepared statement released by Mark Oberti, a partner in Houston's Oberti Sullivan, who represents the defendants in the case, “We respectfully disagree with the court's decision. We are exploring our remedies within the appellate system but at a minimum, if necessary, we will fully defend the case at the trial court level.”

Susan Starr, an attorney in the appellate services division of the EEOC in Washington, DC, who represents the agency in the case, says the ruling is the first of its kind for a federal appellate court.

'”I think other courts will look at it for guidance,” Starr says. “The district court decisions have been all over the map, and they have been unpublished, and there was no real road map provided by them.”

John Council is a writer for The Texas Lawyer, an ALM sister publication of this newsletter in which this article also appeared.

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In a pointed opinion, the Fifth U.S. Circuit Court of Appeals has ruled that firing a woman because she wants to use a breast pump at work violates Title VII of the Civil Rights Act of 1964.

The Case

According to the Fifth Circuit's May 30 decision in Equal Employment Opportunity Commission v. Houston Funding II Ltd, et al., Donnecia Venters, a collector for Houston Funding, took maternity leave in 2008. When Venters discussed her return date with company vice president Harry Cagle, she told him she wanted to use a breast pump at work. Cagle allegedly then told her that her position had been filled and she had been terminated.

Venters filed a complaint with the EEOC, alleging Houston Funding II and Houston Funding Corp. (collectively Houston Funding) discriminated against her because of her sex in violation of Title VII. The EEOC filed an employment discrimination complaint on her behalf in 2011 in the U.S. District Court for the Southern District of Texas, alleging her termination violated Title VII's proscription against sex discrimination “because of her pregnancy, childbirth, or related medical conditions. ' “

Houston Funding denied the allegations in a response, and filed a motion for summary judgment, arguing that the EEOC's case failed as a matter of law because “breast pump discrimination” is not prohibited by Title VII. The trial court granted summary judgment on Feb. 2, 2012, finding that the EEOC failed to state a cognizable Title VII claim.

“Firing someone because of lactation or breast-pumping is not sex discrimination,” the trial court held.

The Appeal

The EEOC appealed to the Fifth Circuit, which found that firing a woman because she wants to use a breast pump is indeed a form of employment discrimination prohibited by Title VII.

“Given our precedent, we hold the EEOC's argument that Houston Funding discharged Venters because she was lactating or expressing milk states a cognizable Title VII sex discrimination claim,” wrote Judge E. Grady Jolly in an opinion joined by Judge James Graves. “An adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not ' indeed, could not ' suffer.”

The ruling went further, holding that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act (PDA), an amendment to Title VII that prohibits employment discrimination against pregnant women.

“Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth,” Jolly wrote. “It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child. The PDA does not define the statutory term 'medical condition' ('pregnancy, childbirth, or related medical conditions'), but '[i]t is well-settled that 'we should give words of statutes their plain meaning.'”

Judge Edith Jones wrote an opinion concurring with the judgment, but she wrote separately to point out that the ruling does not cast doubt on the court's previous holdings that denying women accommodations for using breast pumps at work does not violate Title VII.

“It follows that if Venters intended to request special facilities or down time during work to pump or 'express' breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit,” Jones wrote.

“Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.”

Attorney Comments

According to a prepared statement released by Mark Oberti, a partner in Houston's Oberti Sullivan, who represents the defendants in the case, “We respectfully disagree with the court's decision. We are exploring our remedies within the appellate system but at a minimum, if necessary, we will fully defend the case at the trial court level.”

Susan Starr, an attorney in the appellate services division of the EEOC in Washington, DC, who represents the agency in the case, says the ruling is the first of its kind for a federal appellate court.

'”I think other courts will look at it for guidance,” Starr says. “The district court decisions have been all over the map, and they have been unpublished, and there was no real road map provided by them.”

John Council is a writer for The Texas Lawyer, an ALM sister publication of this newsletter in which this article also appeared.

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