The EEOC is appealing the recent decision in EEOC v. Houston Funding II, Ltd., et al., Case No. H-11-2442 (S.D. Tex. Feb. 2, 2012), which dismissed a complaint filed by the EEOC, and held that “firing someone because of lactation or breast-pumping is not sex discrimination.”  The District Court stated that even if the EEOC could prove that Houston Funding had fired an employee because she sought permission to pump breast milk at the office, the agency would not have a Title VII claim because lactation is not pregnancy, childbirth, or a related medical condition.

In its brief, the EEOC argues that Title VII precludes discrimination based on an inherently sex-linked trait or function such as lactation.  The agency contends that because lactation is a singularly female trait, only women suffer from employment policies regulating the expression of breast milk in the workplace.  The resultant disparity in employment opportunities leads “inevitably [to] discrimination based on [an] employee’s sex.”  This, the agency concludes, is forbidden by Title VII. 

The EEOC also argues that discrimination based on lactation is specifically prohibited by the Pregnancy Discrimination Act which prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.”  42 U.S.C. §2000E(k).  The agency maintains that lactation falls within the broad sweep of the statutory phrase “pregnancy, childbirth, or a related medical condition” because it is caused by “biological and physiological changes resulting from pregnancy and childbirth.”  The EEOC argues that because of the undeniable nexus to pregnancy and childbirth, lactation is “because of or on the basis of pregnancy.”

The appeal is pending before the Fifth Circuit.  If the court decides to classify lactation as “on the basis of sex” or “because of or on the basis of pregnancy” it would signal an extension of Title VII and the Pregnancy Discrimination Act to include pregnancy-related conditions occurring after childbirth.  Thus, this decision could potentially expand coverage to protect a larger class of activities and conditions than those historically covered.