Discharge for Lactation Is Sex Discrimination
In a recent decision, a federal appeals court held that a termination for “lactating or expressing milk” is sex discrimination under Title VII because it would clearly impose upon women “a burden that male employees need not – indeed, could not – suffer.” The Court also ruled that lactation is a “related medical condition” of pregnancy such that the termination was actionable under Pregnancy Discrimination Act. This decision, while not earth-shattering, serves as a reminder for employers about laws governing nursing breaks in the workplace.
Your Job Is Filled
The case was brought by the EEOC on behalf of an employee who claimed she was fired for asking whether she could use a back room to pump milk stated a claim of sex discrimination under federal law. An account representative/collector who took a leave of absence to have her baby asked during her leave whether she could use a breast pump at work. The supervisor whom she asked said that leadership “responded with a strong ‘NO. Maybe she needs to stay home longer.'” Once the new mom was prepared to return to work, she repeated her inquiry and was told that her position was filled. The EEOC sued for sex discrimination under Title VII. The lower court granted summary judgment for the employer, but the Fifth Circuit Court of Appeals reversed and remanded, holding that Title VII protected the employee.
Other Laws and Protections
The landmark health care reform law (the Affordable Care Act) amended the Fair Labor Standards Act (“FLSA”) to provide that an employer must give to a non-exempt mom “a reasonable break time” to “express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express milk.” In addition, employers must “provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public” for nursing employees. The law is silent on the specific number and duration of such nursing breaks. The U.S. Department of Labor (“DOL”), the agency charged with overseeing the law, advises that three such breaks during an eight-hour shift would be expected. The DOL further says that the length of the break will vary from woman to woman.
Pay for Nursing Breaks Not Generally Required
The FLSA does not entitle an employee to compensation for nursing breaks, but an employee who uses a paid break for this purpose is entitled to compensation in the same manner as other employees who use their paid breaks. An exemption to the break time requirement may be available for employers with fewer than 50 employees, but an employer applying for the exemption must establish an “undue hardship.”
Nursing Breaks and the FMLA
The DOL has written in a notice that it “does not believe that breaks to express breast milk can properly be considered to be FMLA leave or counted against an employee’s FMLA leave entitlement.”
State Laws
State laws may be more generous than the FLSA. For instance, Indiana law requires public employers and private employers with more than 25 employees to provide refrigerators or other cold storage space for expressed milk “to the extent reasonably possible.” Colorado law guarantees nursing break time for up to two years after the child’s birth. Other states, such as Michigan, Wisconsin and Kentucky, do not have laws specific to nursing in the workplace.
Lessons for Employers
This decision makes clear that, at least in the Fifth Circuit, an employer may not take adverse employment action against a nursing mom who wishes to pump or otherwise express breast milk while at work. As a principle of non-discrimination, that rule governs employees whether they are hourly or salaried. Employers might wish to consider:
- Training and reminders for managers about the nursing break rules so that they do not run afoul of the law;
- Identifying appropriate spaces, other than bathrooms, for nursing breaks; and
- The benefit of providing appropriate amenities, such as a pump, refrigerator and a sink.
Reference: EEOC v. Houston Funding II Limited, (5th Cir. No. 12-20220, May 30, 2013).
Please contact Jon Rabin at jrabin@hallrender.com or your regular Hall Render attorney if you have any questions.
