On September 7, 2017, the Eleventh Circuit in Hicks v. City of Tuscaloosa, 16-13003 held that breastfeeding is covered under the Pregnancy Discrimination Act (“PDA”). In Hicks, the doctor for a police officer with the Tuscaloosa Police Department. Hicks’ doctor recommended that the officer be considered for alternative duties because the ballistic vest could cause breast infections that could cause inability to breastfeed. Hicks’ supervisor, however, determined that the officer could decline to wear a vest or could wear a vest that could be “specially fitted” for her. To Hicks, not wearing a vest was no accommodation because it was dangerous and the “specially fitted” vest option would be ineffective because those vests left “gaping, dangerous holes.” Hicks resigned and filed her lawsuit asserting, among other things, that the City violated the PDA by compelling her to resign after refusing her an accommodation to breastfeed at work.
The jury found that the City’s action in refusing an accommodation afforded to other employees (in the past, the department had modified working conditions for male officers for various reasons) constituted a constructive discharge. The Eleventh Circuit, citing to a prior Fifth Circuit decision, found that the “denial of accommodation for a breastfeeding employee violated the PDA when it amounted to constructive discharge.”
Several state and local laws require employers to provide accommodations for breastfeeding employees (see, e.g., https://www.jacksonlewis.com/publication/what-employers-need-know-about-new-york-city-pregnancy-accommodation-enforcement-guidance). However, all employers should be mindful that the ruling in Hicks represents the second time a federal appellate court has reached the conclusion that discrimination because a woman is breastfeeding is prohibited under the PDA, and revise their policies and procedures accordingly.