Firing New Mother for Planning to Pump Breast Milk at Work Is Illegal

By Aly Mance, WLP Undergraduate Intern

The Equal Employment Opportunity Commission (EEOC) recently sued Houston Funding II, Ltd. on behalf of new mother Dominica Venters, who was dismissed from her job following her maternity leave.  Venters disclosed to her manager that she would be preparing to return to work but would need a place to pump breast milk so that she could continue breastfeeding her newborn child.  She was met with silence and a firm refusal.  She was later informed that her position had been filled.  Venters and the EEOC alleged sex discrimination against the company for firing her.

A federal district court judge dismissed her case, reasoning that firing a woman because she is breastfeeding is not sex discrimination.  Yet, the clear language of the Pregnancy Discrimination Act of 1978 (PDA), prohibits employers from discriminating against workers based on “pregnancy, childbirth, or related medical conditions.”  The judge reasoned that lactation was not a “condition related to pregnancy and childbirth” because once Venters had her baby, “she was no longer pregnant and her pregnancy-related conditions ended.”

It is quite obvious that breastfeeding and pregnancy go hand-in-hand and that breastfeeding is a condition related to pregnancy.  Despite a multitude of public health justifications for breastfeeding, Venters’ case is not atypical.  Women who wish to return to paid work while continuing to breastfeed are often forced to make a choice between one or the other—their careers or what they feel is best for their baby’s health.  While some employers are flexible and understanding, and would have considered Venters’ request a minor one, many employers refuse to “deal with” employees who choose to breastfeed or try to force them out of the office and back into their homes, “where they belong.”

Recently, however, the U.S. Court of Appeals for the Fifth Circuit reversed the judgment dismissing Venters’ complaint, thereby reinstating her case, thanks in part to an amicus curiae (“friend of the court”) brief submitted by the Texas Medical Association which explained the relationship between pregnancy and breastfeeding.  The court of appeals ruled that firing someone for breastfeeding is, in fact, a form of sex discrimination prohibited by the PDA.

Unfortunately, the Fifth Circuit’s decision is a departure from the overwhelming majority of court decisions regarding breastfeeding and the PDA. For breastfeeding to be protected under the PDA, it must be considered a “related medical condition” of pregnancy under the language of the Act. The majority of courts have inferred that the condition must be medically necessary. Breastfeeding is thought of as a childcare choice due to the availability of formula, thus is deemed not to be a necessary condition of pregnancy. This inference is not present in the text of the PDA, nor is it remotely logical.  Regardless of whether a woman chooses to breastfeed, she will still lactate. To combat this rationale, last year the district court in Colorado determined that if lactation is an inevitable consequence of pregnancy, then it is similar to any other bodily function. See Falk v. City of Glendale, No. 12-cv-00925-JLK, 2012 WL 2390556 (D. Colo. June 25, 2012). The court determined that because the woman in that case was previously allowed breaks to use the restroom, it was not discriminatory to deny her extra breaks to pump. Could this court really be suggesting that breastfeeding mothers must choose between using the restroom and pumping?

Women like Venters are the reason that the Pregnancy Discrimination Act was enacted.  In a profit-driven world where male workers are assumed to be better workers because they don’t get pregnant, give birth, or breastfeed, women need a way to combat institutionalized sexism.  Women need a way to insure that they are being treated as equals to their male counterparts in the workplace.

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