seal.pngBy Christopher DeGroff and Annette Tyman

In the recent decision in EEOC v. Houston Funding II, Ltd., et al., Case No. H-11-2442 (S.D. Tex. Feb. 2, 2012), the U.S. District Court for the Southern District of Texas rejected a claim filed by the EEOC alleging that an employer unlawfully discriminated against a worker on the basis of her sex because she wanted to express breast-milk while at work. In its complaint, the EEOC alleged that the Houston Funding’s conduct violated Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. In granting summary judgment to the employer, the Court disagreed, holding that “firing someone because of lactation or breast-pumping is not sex discrimination.” Id. at 2.

Background Facts

The dispute arose after an employee went on a maternity leave of absence. The employee’s leave began on December 1, 2008 and she gave birth ten days later. Although the employee was in contact with various managers and co-workers during her leave, she did not specify a date by which she would return to work. Thus, the Company terminated the employee for job abandonment effective on February 13, 2008. Several days later, the employee contacted the Company’s Vice-President to inform him that she had received a release to return to work and she asked about a private space to express breast-milk. During their conversation, the Vice-President informed the employee that she had been terminated for job abandonment and that her position had already been filled. In its complaint, the EEOC alleged that the issue of her termination came up only after the employee suggested using a private room to express breast-milk while at work. 

In a terse, three-page decision, the Court rejected the EEOC’s claim out of hand. The Court reasoned that even assuming that the “real reason” the worker was fired was because she wanted to pump breast-milk at work, the employee was “no longer pregnant and her pregnancy-related conditions ended” and that “lactation is not pregnancy, childbirth, or a related medical condition.” Id.

What This Means For Employers

The Court’s decision makes clear that expressing breast-milk is not protected under federal anti-discrimination laws and is yet another example of overreaching by the EEOC. Nonetheless, the decision has garnered the attention of numerous opponents who have filed scathing protests with the Court calling for appellate review and reversal of the Court’s decision.   

Further, the EEOC is not apt to “give up” on this front. On February 15, 2012, the EEOC hosted a meeting at its headquarters on a range of issues relative to pregnancy discrimination. The Commission promptly posted the hearing record on its website. Clearly, these issues remain front and center on the EEOC’s radar.

Employers also should take care that they do not run afoul of other statutes that do address issues related to nursing mothers. For instance, the Fair Labor Standards Act requires that employers allow non-exempt nursing mothers “reasonable time” and a private place for expressing milk that is not a bathroom. Similarly, at least 24 states, including California, Georgia, Illinois, and New York, as well as the District of Columbia and Puerto Rico, have laws related to expressing breast-milk in the workplace.