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. The order granting summary judgment is quite confusing. The statement of facts, presumably representing facts which were not disputed, establish that the employee was fired before the issue of pumping was even raised. If so, there was no need to determine whether the allegations could establish a cause of action. It also looks like no facts were stated which would establish the type of medical connections mentioned above, including the medical problems which can be caused by not pumping. Maybe the attorneys believed the connection between pregnancy and the need to pump was self-evident (no blame there, I probably would have as well).

  2. commoner,


    Certainly not someone who has the milk of human kindness running through their veins.

  3. I felt bad for the woman until I read that she works for a debt collection agency. What kind of person works for a debt collection agency?

  4. One more thing. An employer can have animus. [Dogs hate that word] If it is a racial discrimination case an employer might fire the African American and say well they quit and we are not rehiring them. The plaintiff says, they sent me home for speaking “colored”. Lawsuit. Motion by McDonnell Douglas for summary judgment saying he quit but even so his allegation that we sent him home for speaking “colored” is not in the race discrimnation statute. Ah, the appeals court says. It is a question of fact if this pretextual reason is imposed to cover up the racial animus of the defendant against African Americans.

    In McDonnell Douglas v. Percy Green the Supreme Court laid out a matrix for pretextual cases. This is one of the most cited cases in the federal system. 411 U.S. 792 (1973). Google it. Or find it on Pacer or Westlaw.
    Here is a blurb from McDonnell Douglas v. Green:

    The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Griggs v. Duke Power Co., 401 U.S. 424, 429 (1971); Castro v. Beecher, 459 F.2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA2 1972); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va. 1968). As noted in Griggs, supra:
    “Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. [411 U.S. 792, 801] What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Id., at 430-431.
    There are societal as well as personal interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.
    In this case respondent, the complainant below, charges that he was denied employment “because of his involvement in civil rights activities” and “because of his race and color.”11 Petitioner denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case.12 We now address this problem. [411 U.S. 792, 802]
    The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.13 In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case. 463 F.2d 337, 353. Petitioner sought mechanics, respondent’s trade, and continued to do so after respondent’s rejection. Petitioner moreover, does not dispute respondent’s qualifications14 and acknowledges that his past work performance in petitioner’s employ was “satisfactory.”15
    The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. We need not attempt in the instant case to detail every matter which fairly could be [411 U.S. 792, 803] recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner’s burden of proof at this stage and to meet respondent’s prima facie case of discrimination.
    The Court of Appeals intimated, however, that petitioner’s stated reason for refusing to rehire respondent was a “subjective” rather than objective criterion which “carr[ies] little weight in rebutting charges of discrimination,” 463 F.2d, at 352. This was among the statements which caused the dissenting judge to read the opinion as taking “the position that such unlawful acts as Green committed against McDonnell would not legally entitle McDonnell to refuse to hire him, even though no racial motivation was involved . . . .” Id., at 355. Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part in a carefully planned “stall-in,” designed to tie up access to and egress from petitioner’s plant at a peak traffic hour.16 Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it.17 In upholding, under the National Labor Relations Act, the discharge of employees who had seized and forcibly retained [411 U.S. 792, 804] an employer’s factory buildings in an illegal sit-down strike, the Court noted pertinently:
    “We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, – to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property . . . . Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression.” NLRB v. Fansteel Corp., 306 U.S. 240, 255 (1939).
    Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent’s conduct as a pretext for the sort of discrimination prohibited by 703 (a) (1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the “stall-in” were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
    Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner’s treatment of respondent during his prior term of employment; petitioner’s reaction, if any, to respondent’s legitimate civil rights activities; and petitioner’s general policy and [411 U.S. 792, 805] practice with respect to minority employment.18 On the latter point, statistics as to petitioner’s employment policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (CA10 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 91-94 (1972).19 In short, on the retrial respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.

    end of quote

    Ok, that was a bit long. If this was my case I would argue that this is a prima facie case of discrimination against employees who get pregnant. I would argue that my client did not quit, she was off work to birth a baby, that the reason is pretextual, that this is a matter of fact, genuine issue of material fact under Rule 56 and not subject to summary judgment and the plaintiff is entitled to a jury trial.

    Read the judge’s order on summary judgment here at the link above. It is so cursory as to demand reversal.

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