As the laws governing the treatment of pregnant employees and new mothers continue to evolve, one recent decision from the United States District Court for the Northern District Alabama highlights the complexities that arise from the patchwork of federal laws that apply to employees during and after pregnancy.

Facts

The plaintiff in Hicks v. City of Tuscaloosa was an officer in the Tuscaloosa Police Department (“TPD”), who became pregnant while serving as an agent in the narcotics squad. When she inquired as to policies for pregnant employees, Hicks was told that no such policies existed, but that her supervisor, at his discretion, could limit her duties by asking, among other things, that she not go on call, travel for training classes, or become recertified with her firearm due to potential led exposure. Against Hicks’ wishes, some of her duties were, in fact limited; however, her performance reviews remained positive during her pregnancy.

Before taking leave for the birth of her child, Hicks was advised by a female supervisor that she did not need to take the full twelve weeks to which she was entitled under the federal Family Medical Leave Act (“FMLA”), and that the supervisor had not taken the full amount when she had had children sometime prior. When Hicks returned from leave (having taken the full allotment), she was written up within her first hour of work for allowing her vehicle to exceed the recommended mileage without getting an oil change, and for obtaining warrants in the same manner that she had prior to her leave, and for which she had never been disciplined or spoken to. She was also issued a negative “quarterly” review – which she had never had before, as evaluations biannual – for a time period that encompassed a short window leading up to her leave, as well as the months that she was actually on leave.

In addition, when Hicks informed her supervisors that she was breastfeeding and that she would be picking up her son from daycare at a time that would not interfere with her shift, she was told that she was being reassigned to a patrol unit – such that her daycare arrangements would be unworkable, and that she would have to express breastmilk in the locker rooms/bathrooms, which were used by city employees and by the public. Further, her transfer to patrol would entail a diminution in pay and require her to wear a wear a protective vest that would impede her milk production. (She was also advised that she could forego a vest entirely, which would compromise her safety on the job.)

Finally, Hicks was subject to a number of comments about her pregnancy and related conditions, including criticism for taking the twelve weeks’ leave and questions about whether she was suffering from post-partum depression.

The Court’s Decision and the State of the Law

Hicks filed suit under Title VII of the Civil Rights of 1964 (“Title VII”), the FMLA, and the Fair Labor Standards Act (“FLSA”), all of which concern discrete rights afforded to pregnant women and new mothers.

Title VII and the Pregnancy Discrimination Act

Title VII prohibits an employer from discriminating or creating a hostile work environment on the basis of an employee’s sex. In 1978, Congress amended Title VII to include the Pregnancy Discrimination Act (“PDA”), which specified that discrimination on the basis of sex includes discrimination based on pregnancy, childbirth, or related medical conditions. In assessing Hicks’ discrimination claims under these statutes, the court first held that although she had not been discriminated against during her pregnancy, there were issues of fact surrounding whether her involuntary transfer to the patrol unit was motivated by discriminatory animus based on her pregnancy and on her post-partum depression, which the court acknowledged was a medical condition related to Hicks’ pregnancy.

The court then turned to the question of whether Hicks could state a pregnancy discrimination claim based on the fact that she was lactating and had requested an accommodation in order to express breastmilk upon her return from leave. It first held that like post-partum depression, lactation was a medical condition relating to pregnancy and therefore an illegal basis for discrimination. Paradoxically, however, the court held that while an employer could not treat a lactating employee less favorably than other employees with similar restrictions, it was not required by Title VII or the PDA to affirmatively accommodate an employee with this condition.

With these precepts in mind, the court found that Hicks had provided enough evidence to withstand dismissal, based on the fact that other officers had been temporarily assigned to desk jobs as a result of various medical conditions, but that Hicks’ request for temporary desk work was denied. Moreover, forcing Hicks to choose between wearing a vest (which would stanch her milk supply) and foregoing a vest (which would expose her to danger) constituted a constructive discharge in violation of the law.

The FMLA

In addition to her discrimination claims under Title VII and the PDA, Hicks also alleged that the TPD had interfered with her rights under the FMLA and illegally retaliated against her for availing herself of those rights. As to Hicks’ interference claim, the court denied the TPD’s motion to dismiss, noting that Hicks had been transferred to a less-desirable and lower-compensated position roughly a week after her return from leave, despite the fact that an employee is entitled to be reinstated to the same position she had previously held, or at the very least, to a position that is equivalent in terms of benefits, pay, and other terms and conditions of employment. Likewise, the temporal proximity between Hicks’ leave and her transfer, combined with the other conduct and comments she alleged, created an issue of fact as to whether her transfer was in retaliation for the twelve-week leave she had taken.

The FLSA

The final federal law underlying Hicks’ lawsuit was the Fair Labor Standards Act, and specifically, its provision that employers must provide a reasonable break time for an employee to express breast milk for a year after the birth of a child, as well as a private place – other than a bathroom stall – for her to do so. On this point, the court agreed with Hicks that the restroom/locker room that was open to the public did not satisfy the requirements of the FLSA. Nor, it found, did the TPD satisfy its obligations by allowing Hicks to “work around” the lack of space by occasionally returning home to express during her lunch break, or by providing access to the City Hall’s private lactation rooms, which were not located in Hicks’ primary place of work.

Notably, despite finding that the TPD’s conduct violated the FLSA’s substantive requirements, the court held that Hicks was unable to state a claim because she had not suffered the types of damages that the law allowed plaintiffs to recover. Namely, the FLSA’s nursing mothers provision only allows a plaintiff to collect unpaid minimum wages and overtime lost as a result of time spent expressing milk, which Hicks did not allege. Though Hicks had claimed that her breaks were used to support her transfer and resulted in lost wages on that account, the court found that lost wages, generally, were not contemplated by the statute, thereby compelling the “absurd[]” conclusion that her FLSA claim had to be dismissed.

As the Hicks case makes clear, the federal law surrounding pregnant employees and new mothers is fragmentary, nuanced, and often illogical, creating uncertainties for employers and employees alike. Several states and localities have attempted to bridge the gaps in this patchwork through legislation that touches on all aspects of pregnancy and post-pregnancy, including disabilities and other conditions that bear on a woman’s ability to work, as well as on related issues such as bonding time. But for employers and employees who operate in jurisdictions where the only law is the “floor” established by federal law, the issues that stem from this piecemeal approach are likely to persist.