A recent decision issued by the U.S. Court of Appeals for the Eleventh Circuit serves as a cautionary tale for employers quick to deny employees’ requests for accommodations after returning from maternity leave. The Pregnancy Discrimination Act (“PDA”) prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” In light of recent trends as shown by this recent ruling, employers should be prepared to work with their employees to find reasonable accommodations pregnancy-related conditions, including breastfeeding.
In Hicks v. City of Tuscaloosa, Stephanie Hicks was a narcotics investigator with the Tuscaloosa Police Department. When Hicks was pregnant, her supervisor allowed her to work different cases so that she could avoid night and weekend shifts worked by narcotics officers. Other supervisors admitted they were annoyed that Hicks was permitted to take new assignments. Additionally, supervisors were upset that Hicks took 12 weeks of leave, which she was entitled to under the Family and Medical Leave Act (“FMLA”), after the birth of her child.
When Hicks returned to work, her supervisors’ demeanor changed. On the very first day of her return, she received a disciplinary write-up. Hicks also alleged that she overhead a supervisor telling a colleague that the supervisor would write her up again to “get [Hicks] out of here.” To her face, supervisors told Hicks it was because she seemed “changed,” implying she had the “baby blues.” But Hicks also overheard them complaining about the length of time she took off for maternity leave, with one supervisor stating she believed Hicks was only entitled to six weeks of FMLA leave.
Shortly after her return, Hicks was reassigned to the patrol division. Working patrol resulted in reduced pay and forced her to take weekend shifts. Additionally, and unlike narcotics officers, patrol officers were required to wear a bulletproof vest all day. Hicks was still nursing her baby, and her doctor warned Hicks’ supervisors that the heavy and tight vest could interfere with her ability to breastfeed and subject her to a painful infection. The Department denied Hicks’ request for a desk assignment, even though other officers were routinely provided the same accommodation for other medical conditions. The Department determined that breastfeeding was not a condition that warranted a “special accommodation.”
A jury held that the Department’s decision to reassign Hicks constituted discrimination under the PDA, and found that the Department retaliated against her for taking FMLA leave. The jury also found that the City’s failure to accommodate Hicks’s requests constituted a “constructive discharge” in violation of the PDA. The jury awarded $374,000, but a magistrate judge reduced the award to just over $160,000 plus attorneys’ fees
The Department appealed and asked the Eleventh Circuit to overturn the jury verdict. The Department argued that Hicks was reassigned for poor job performance, and that it had no legal obligation under the PDA to offer “special accommodations” for breastfeeding. The court disagreed. The court found that liability for discrimination does not end simply because a woman is no longer pregnant, and the court specifically held that lactation is covered as a sex-linked condition because, obviously, it is related to pregnancy. The court also upheld the jury’s finding that the Department’s conduct was based on Hicks’ use of FMLA leave.
The court was careful to note that the PDA does not require any “special accommodations” only for pregnant women or new mothers, nor must employers provide special accommodations for breastfeeding. But in this case, the jury found that the Department’s refusal to provide certain accommodations previously afforded to other employees amounted to discrimination against Hicks because of a condition related to pregnancy. In sum, the court found that Hicks “was not asking for a special accommodation, or more than equal treatment––she was asking to be treated the same as ‘other persons not so affected but similar in their ability or inability to work’ as required by the PDA.” Other employees with temporary injuries were given “alternative duty,” and she merely requested to be granted the same alternative duty. Therefore, a jury could reasonably find that the Department’s refusal was discriminatory.
So far, the Eleventh and Fifth Circuits are the only federal appellate courts to hold that lactation and breastfeeding are “related medical conditions” to pregnancy under the PDA. Other federal appellate courts have taken a narrower view, finding that conditions related to pregnancy only require accommodation if they are incapacitating or a true medical necessity. But as the Hicks ruling noted, federal district courts across the country have increasingly followed the Fifth Circuit’s logic, holding that lactation is a condition “related to pregnancy” under the PDA. Employers should also be aware that the EEOC identified pregnancy-related discrimination would be an enforcement priority for the next several years. Employers should be prepared not to work with new mothers on reasonable accommodations, and not dismiss such requests out of hand.