Federal Court Rejects “Lactation Discrimination” Claim

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

Source: ABC as first seen on ABA Journal

27 thoughts on “Federal Court Rejects “Lactation Discrimination” Claim”

  1. Another aspect. The Seventh Amendment gives us the right to a trial by jury in civil matters. The plaintiff is entitled to have the jury determine genuine issues of material fact. The case was decided on Summary Judgment. This is a motion whereby a judge is to determine that there are no genuine issues of material fact in dispute and that therefore the movant other party is entitled to judgement as a matter of law.
    The question is, whether this determination is a matter of pure law or is it a genuine issue of material fact. If so, jury decides.

    The judge cited three cases in his footnote but he did not make the requisite findings or recite the words that there were no genuine issues of material fact in dispute.

    The summary judgment analysis requires more. If there is a stated reason for a firing and the plaintiff counters that said reason is pretextual, that the real reason is that she had to pump milk out of her breasts for feeding, and that was because she was not up to speed on the issue and hence it is a medical condition, then a court must side with the mother and allow a jury to determine whether the stated reason (that she quit) is pretextual.

    There is a lot of law on this. Read the annotations to Rule 56 of the Federal Rules of Civil Procedure, and read the annotations to any of the discrimination statutes, race, age, pregnancy.

    On appeal the court of appeals will look to see if there is a pretext issue here and then will remand for a trial because the court was deciding that the pretext was not a pretext and the court was deciding a question of fact that breast pumping was not related to the pregnancy and birth and health and medical condition etc. The judge here was implying, even if it was pretextual (her quiting) that she cant prevail because the question is a matter of law (he didnt say this) only.

    The court of appeals will have to parse the statute. I am a dog and cannot parse statutes.

  2. I’m sure Judge Hughes’ total lack of knowledge of the female anatomy is really appreciated by his wife.

    And her boyfriend.

  3. Lactation discrimination? Judge says firing women for breast-pumping is legal

    “Even if Venters’s claims are true,” Hughes wrote, “the law does not punish lactation discrimination.”

    Hughes added that “…lactation is not pregnancy, childbirth or a related medical condition.”

    The lawyer who represented Venters disagrees.

    “Under the law that prohibits discrimination on pregnancy, childbirth or related medical condition, lactation is a related medical condition to pregnancy and childbirth,” argued Timothy Bowne, an Equal Employment Opportunity Commission attorney. “There are no people that we know of who lactate who haven’t given birth recently.”

    At the Motherhood Center in southwest Houston, many moms were furious with the judge’s decision.

    “No, I don’t think that it’s right,” said one mom. “I think that if you want to continue breast feeding because it’s the best thing for your baby, you should be able to continue to bring your pump to work and continue doing that.”

    “I do think that would probably be sex discrimination because it’s a woman’s job to breast feed a baby and therefore, if they’re not making provisions to allow her to do that at work, then they are discriminating against women because a man would not be put in that situation,” said another mom.

    The EEOC and Venters say they’re weighing their legal options, but an appeal is very likely.

  4. martingugino 1, February 9, 2012 at 10:24 am

    … The notion that the disruption of a child ends at birth is not the proper biological understanding.
    That is correct. Right wing judges continue to disrupt children us in every way they can throughout our lives.

    Lest they forget: “childruns do learn” – Bush II

  5. The war on women is real and proceeding on many fronts. I just signed a petition to the Ohio House and Senate regarding one of the many bills that attack women.

    Thanks to all those lovely teabaggers, the Ohio legislature has seen more anti-women legislation introduced in the last year than in the past three sessions combined.

  6. I agree with DHMCarver and it is a slam dunk. But if I was the lawyer for the pltif I would be barking up that tree and one more to buttress the argument. Seems to me that on remand this is a jury question of fact not one of law. Is the pump process a medical issue? Expert witness with the breast and the pump for the jury to observe. Pick a jury with as many women as possible. Dont trust the men who want to serve. Questions of fact are jury questions. That, my four legged friends is the nub. No pun intended–the “nub” was Lincoln’s term of art for getting down to the nitty gritty of a law issue or a fact issue or an issue on appeal regarding whether it is law or fact. If the lawyers made an offer of proof then they can get the expert opinion in at the Court of Appeals level. If the plaintiff said it was medically prescribed then her testimony is good enough, for in Texas courts, sauce for the goose is sauce for the gander. Plaintiff’s opinion is better than the male judge’s unsupported opinion on facts– which are genuine issues of fact for a jury of peers. Next the employer will say that she cant bottle feed the baby in public out on the parking lot after work. If this judge has any women daughters in the family I hope he gets a smacking on the wrists at Easter get together. Hope he doesnt have a dog.

  7. Thank you DHM Carver, I’d like to add that a lactating mother who allows the breast to get engorged also runs the risk of a clogged milk duct that can become more painful and (caveat – I am not an MD) can lead to additional complications.

  8. From the National Institutes of Health:

    Breast milk – pumping and storing

    Pumping and storing breast milk allows you to have a supply of milk for your baby when it is needed. This can be a good option for moms who return to work after having a baby.

    Keeping up a supply of breast milk can be a challenge for moms who return to work outside the home. You will need to pump and collect breast milk during the day while at the office.

    Proper planning, support, and the correct equipment can help you continue to breastfeed, even after returning to work outside the home.


  9. DHMCarver,

    “This judge is evidently completely ignorant of the biology of women post-childbirth, or he just does not give a damn.”


    That’s it…in a nutshell!

  10. This Reagan appointee is in the pocket of big business. BP oil wanted him to have jurisdiction.

  11. “Lactation is not pregnancy, childbirth, or a related medical condition.”

    Oh really? Has the judge ever had engorged breasts?

    Somebody send the judge the following link:

    Breast Engorgement – Topic Overview
    What is breast engorgement, and what causes it?

    Breast engorgement is the painful overfilling of the breasts with milk. This is usually caused by an imbalance between milk supply and infant demand. This condition is a common reason that mothers stop breast-feeding sooner than they had planned.

    Overfilled breasts can easily become very swollen and painful, leading to severe engorgement. Common causes of severe engorgement are:

    * Waiting too long to begin breast-feeding your newborn.
    * Not feeding often enough.
    * Small feedings that do not empty the breast well. Babies who are fed formula or water are less likely to breast-feed well.



    What are working mothers of infants supposed to do?

  12. This judge is evidently completely ignorant of the biology of women post-childbirth, or he just does not give a damn. Or both (I am betting on both). Production of breast milk after pregnancy is not like having a tap you can turn on or off. This clause of the statute he cites “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes” EASILY encompasses the need for women to use a breast pump at work in the months following childbirth — yes, lactation is a “medical condition” — a physiological reaction of the body to childbirth. If you cannot fire a woman who is pregnant and suffering from morning sickness, you cannot fire a woman who has given birth and needs to pump at work. He should have reached the merits of the case — a shameful decision.

    Of course, if this were just about any other industrialized nation, this would not be a problem, as the woman in question would have been able to take the leave required for the care and nurture of her child. But this is the United States, with the worst maternal & paternal leave policies in the industrial world.

  13. The pregnancy discrimination act should have been the perinatal discrimination act. The notion that the disruption of a child ends at birth is not the proper biological understanding.

  14. Everyone knows that God made breasts for sex. We can’t have people running around claiming otherwise.

  15. I have to agree with the professor here, the decision is too narrow and does not read the statute properly.

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