Last week, in Equal Employment Opportunity Commission v. Houston Funding II, Ltd. et al., No. 12-20220, 2013 WL 2360114 (5th Cir. May 30, 2013), the U.S. Court of Appeals for the Fifth Circuit handed the EEOC a nominal victory by holding that employment decisions based on lactation or expressing breast milk can provide a basis for discrimination claims under Title VII and the Pregnancy Discrimination Act (“PDA”).

The Underlying Case

The EEOC brought the underlying suit on behalf of an employee who was allegedly terminated because she was lactating and wanted to express breast milk at work. The employee worked for the defendant as an account representative/collector from March 2006 until February 2009. While on a leave of absence following the birth of her child, she twice asked whether she would be able to use a breast pump at work once she returned.  The employer responded “no” the first time and informed the employee that her position had been filled when she raised the issue again. The employer issued a termination letter indicating that she had been terminated for job abandonment. The District Court granted summary judgment in favor of the employer, holding that, as a matter of law, discharging an employee because she is lactating does not constitute sex discrimination. The EEOC appealed.

The Fifth Circuit Ruling

The Fifth Circuit vacated and remanded the grant of summary judgment, holding that the EEOC had presented facts that, if true, constituted a cognizable claim under Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act. Id. at *2-*3. In reaching this decision, the Fifth Circuit observed that ever since Title VII was amended to include the Pregnancy Discrimination Act (“PDA”), courts have interpreted Title VII to cover a far wider range of employment decisions involving female physiology. Id. at *2. The Fifth Circuit also noted that the PDA prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” Id. Unlike the District Court, the Fifth Circuit was not persuaded that PDA protection could not exist post-pregnancy, so it had little difficulty determining that lactation is an aspect of female physiology that is affected by pregnancy, and that it therefore falls within the definition of “pregnancy, childbirth, or related medical condition.” Id. at *3.

In her pointed concurrence, Judge Edith Jones stated that the Fifth Circuit had previously held that the PDA “does not mandate special accommodations to women because of pregnancy or related conditions” and that “it follows that if [the employee] intended to request special facilities or down time during work to pump or ‘express’ breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit.” Id. at *4.

Implications For Employers

Given the  significant media coverage surrounding this case, this ruling is likely to embolden the EEOC and private plaintiffs to pursue employers over lactation policies or practices, particularly because the Patient Protection and Affordable Care Act, amended Section 7 of the Fair Labor Standards Act to require employers with 50 or more employees to provide reasonable break time and facilities for nursing mothers to express breast milk during the work day, for one year after the child’s birth. When evaluating those policies, employers will want to keep in mind that the FLSA amendment does not prohibit discrimination based on lactation or expressing milk, that other district courts have held that employment decisions based on lactation or expressing milk cannot support a claim of sex discrimination, and that Judge Edith Jones’ concurrence explains the limited scope of the Fifth Circuit’s ruling.