Why it matters

A California federal court judge refused to dismiss a surrogate mother's claims that she was not provided with accommodations in violation of the federal Pregnancy Discrimination Act and California's Fair Employment and Housing Act, moving the case forward. Mary Gonzales sued Marriott International earlier this year alleging that the hotel chain discriminated against her for being a surrogate mother, demonstrated by the fact that she was only permitted to take lactation breaks for a few weeks before being told she had to use her lunch break to pump—while other lactating women were granted breaks—because she wasn't feeding a child at home. Marriott moved to dismiss the lawsuit, contending that the law does not mandate that employers provide extra lactation breaks when employees express milk for a child not their own. But the judge sided with Gonzales and denied the motion, writing that the employer's "narrow" interpretation of the law was incorrect. Reasonable jurors "could conclude that Gonzales was subjected to the treatment she was because Marriott perceived she did not conform to stereotypical views of how women act as it relates to motherhood or child bearing," the court said.

Detailed discussion

A full-time general accountant and cashier at the Los Angeles Airport Marriott, Mary Gonzales entered into a gestational surrogacy agreement. She became pregnant in August 2013 and gave birth to a healthy female child on April 22, 2014. An hourly employee, Gonzales was allowed one unpaid 30-minute lunch break and two paid 10-minute rest breaks per day.

After giving birth, Gonzales expressed milk several times a day for the child's family. During her maternity leave, she e-mailed her manager to inform him that she would need to express milk twice a day when she returned. When she did come back to work in June, she expressed milk twice a day in her office for about 10 days, with each session lasting 25 to 30 minutes. After she realized her office was equipped with video surveillance, Gonzales began using a lactation room set up in a nearby empty office that other female employees also used. For another two weeks, Gonzales used her two breaks to express milk in the lactation room.

At the end of June, her obligation to provide milk to the child's family ended, but Gonzales continued to express milk due to the personal health benefits, donating the milk she pumped. According to Gonzales, she was informed by her manager on June 30 that she could only take breaks to express milk for another 30 days and then would no longer be given the time to do so. She objected, and asserted that her manager replied in an "angry and dismissive" tone. Told that she was "not disabled" and not feeding "a child at home," Gonzales said she was instructed she could only use her lunch break to express milk.

Gonzales filed suit against Marriott, alleging violations of the California Fair Employment and Housing Act (FEHA) and the Pregnancy Discrimination Act amendments to Title VII. She claimed that other female employees were accommodated because they were nursing children at home and that she suffered clogged ducts, severe breast pain and soreness, and loss of sleep from having to express at night because she couldn't do so during the day.

Marriott moved to dismiss the suit. The employer pointed to Labor Code Section 1030 to argue the lactation accommodation requirements under state law are limited to employees who express breast milk for their own children. The provision states: "Every employer … shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee's infant child."

Based on this language, the employer argued that the Legislature clearly did not intend to require employers to accommodate employees who wished to express milk for other reasons.

But U.S. District Court Judge Margaret M. Morrow took issue with Marriott's "narrow focus" on the language of the provision. Compliance with Section 1030 "is but one example in a non-exhaustive list of accommodation options," she wrote, and does not consider the range of other reasonable accommodations to achieve compliance with FEHA and its interpreting regulations.

Other factors relating to the accommodation—the length of time employers must accommodate lactating employees and whether lactation breaks should be paid or unpaid—are questions for a jury under the facts and circumstances of the case, the court added. Similarly, for Marriott's contention that it had no requirement to accommodate Gonzales after she stopped sending expressed milk to the child's family, the court deferred to the jury.

"First, Gonzales may be able to adduce evidence that there were health reasons that led her physician to recommend continued lactation," the judge wrote. "Second, whether it is 'reasonable' to require an employer to accommodate an employee's desire to express milk that she intends to donate or sell is a question of fact for the jury."

The legislative history behind Section 1030 was insufficient to support Marriott's position, the court said, because it did not reveal any "intent toexclude employees who are not nursing their own children from seeking accommodation to express breast milk at work," and "notes the health benefits of lactation for a woman who has given birth," which are present whoever receives the expressed milk.

Permitting other women to express milk at work did not alleviate the employer from Gonzales' assertion that she was discriminated against because of her sex. Title VII protects individuals, as well as groups, Judge Morrow explained, and simply allowing other women to take breaks to express milk did not defeat Gonzales' claim.

Considering Gonzales' sex stereotyping claim, the court noted literature about the stereotyping of gestational surrogates as well as a lack of case law endorsing impermissible sex stereotyping as the basis for liability under Title VII.

"While the matter is not free from doubt, the court declines, at this stage of the proceedings, to dismiss the sex stereotyping claims on the basis that being a gestational surrogate is not a form of sex-based stereotype," the judge said. "It is true that such a stereotype draws a distinction between two categories of women rather than between men and women. It is also true that it does not appear directly to concern the manner in which an employee does her work," but a direct connection between job performance and sex stereotype has not always been required.

"Here, a reasonable jury could conclude that Gonzales was subjected to the treatment she was because Marriott perceived she did not conform to stereotypical views of how women act as it relates to motherhood or childbearing," the court said, ruling without prejudice to allow the employer to raise the issue at a later stage of the proceedings.

Judge Morrow also analyzed whether Gonzales adequately alleged an adverse employment action. Workplace ostracism (exclusion from lunches and social events because that was her only time to express milk), inconvenience due to changes in her work schedule, and a few negative encounters with management were insufficient, the court said. However, Gonzales was not permitted to take paid breaks like other lactating employees after a certain point, and if she can prove that she was entitled to reasonable accommodation in the form of lactation breaks, paid or unpaid, the denial of such breaks could constitute adverse employment action, the court decided.

The court denied Marriott's motion to dismiss.

To read the order in Gonzales v. Marriott International, Inc., click here.