The Fifth Circuit Court of Appeals held recently that terminating an employee because she is lactating or expressing milk is unlawful under Title VII and the Pregnancy Discrimination Act (“PDA”).  EEOC v. Houston Funding II, No. 12-20220 (5th Cir. May 30, 2013)

In this case, an employee took leave of absence to have a baby. During her leave, she spoke to her supervisor frequently and, during one conversation, she asked whether she could use a breast pump at work upon her return. Her supervisor posed the question to one of the company owners, who responded with a “strong ‘NO’” and a suggestion that perhaps she should stay at home longer. Upon her release to return to work, the employee asked again whether she could use a back room to pump milk, but the employer told her she had been discharged.

The district court ruled that termination based on lactation or breast pumping was not sex discrimination and that lactation was not a medical condition of pregnancy. The Court of Appeals, however, reversed course, concluding that “lactation is a related medical condition of pregnancy for purposes of the PDA.”

This case was not about accommodating a request to breast feed; it was about disparate treatment based on an employee’s lactation. Reasonable, legal minds differ, as evidenced by the very different result in the district and appellate courts. In the end, though, the Fifth Circuit ruled that termination for lactation is sex discrimination.