U.S. District Judge Lynn Hughes in Texas has rejected the claim of “lactation discrimination” as a form of employment discrimination. The claim was made by Donnica Venters who says that she was terminated by Houston Funding for using a breast pump at work. The company insists that she was not terminated but left on her own accord. However, Hughes (left) made that dispute moot by ruling that “Lactation is not pregnancy, childbirth, or a related medical condition.”
The Pregnancy Discrimination Act of 1978 (PDA), codified at 42 U.S.C. § 2000e(k), provides:
The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in [**8] their ability or inability to work….
The question is whether breast feeding is an affect or medical condition linked to pregnancy.
Hughes adopted a narrow view of discrimination on the basis for pregnancies: “Discrimination because of pregnancy, childbirth, or a related medical condition is illegal. Related conditions may include cramping, dizziness, and nausea while pregnant.”
The opinion, however, does not offer a full explanation of distinction and is fairly conclusory. He cites however earlier cases finding lactation claims to be outside of the protection of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.” A more substantial treatment of the subject is found in cases like Fejes v. Gilpin Ventures, 960 F. Supp. 1487 (D. Colo. 1997) (which was the basis for the decision in the first case cited by Hughes). The court held that
“In appending the PDA amendment to Title VII, Congress considered the statement that “if a woman wants to stay home to take care of the child, no benefit must be paid because this is not a medically determined condition related to pregnancy.” H.R. No. 948, 95th Cong. 5, reprinted in 1978 U.S.Code Cong. & Admin.News, 5, 4749, 4753. Nothing in the PDA, or Title VII itself, obliges an employer to accommodate the child-care concerns of breast-feeding workers. If Congress had wanted these sorts of child-care concerns to be covered in Title VII by the Pregnancy Discrimination Act, it would have said so in plain language”
Likewise, in in Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D.Ky.1990), aff’d without opinion, 951 F.2d 351 (6th Cir.1991), the court ruled:
Nothing in plaintiff’s case states a claim under Title VII as amended by the Pregnancy Discrimination Act…. While it may be that breast-feeding and weaning are natural concomitants of pregnancy and childbirth, they are not [**9] “medical conditions” related thereto. Admittedly, the act does not define what constitutes “related medical conditions.” However, the substantive references to “related medical conditions” within that legislative history are all in the context of the extent to which female employees can be denied medical benefits, such as sick leave and health insurance coverage, arising from pregnancy and childbirth. Further, Congress’ express intent was to codify … EEOC guidelines that required “employers to treat disabilities caused or contributed to by pregnancy, miscarriage, abortion, child-birth and recovery therefrom as all other temporary disabilities.” H.R. No. 948, 95th Cong. 2, reprinted in 1978 U.S.Code Cong. & Admin.News, 4749, 4750.
Courts will often decline to “gap fill” an ambiguous statute in favor of leaving the question to Congress — particularly when an argument would impose consider costs on either the country or employers. It will be interesting to see if this is an issue upon which Congress will want to be heard as courts bar such claims. I view the nexus between lactation and pregnancy to be closer than these courts suggest. Certainly, some law professors in the field strongly contest the view of these courts. Regardless of how one comes out on the issue, it would seem worthy of congressional hearings.
Here is the opinion: Employment Opinion