In a case of first impression, the Fifth Circuit has held that taking an adverse employment action against a female employee because she is lactating or expressing milk constitutes sex discrimination in violation of Title VII. EEOC v. Houston Funding II, Ltd., No. 12-20220 (5^th Cir., May 30, 2013).

The case arises from the termination of Donnicia Venters, an account representative for Houston Funding, prior to her return from a leave of absence after having a baby. Houston Funding has no maternity leave policy. When Venters had her baby in December 2008, she told her superiors that she would return to work as soon as possible. Due to complications from a C-section, Venters was medically off work until February 2009.

During her leave, Venters and her supervisor, Robert Fleming, communicated regularly about her leave status. During one such conversation, Venters told Fleming that she was nursing and asked if she would be able to bring a breast pump to work. When Fleming informed his superior, Harry Cagle, of the request, Cagle responded with an emphatic "No," and suggested that Venters should stay home longer.

Thereafter, Venters phoned Cagle and informed him that her doctor had released her to return to work. She also told him that she was lactating and asked if she could use the back room to pump breast milk. Cagle responded (according to Venters, after a lengthy silent pause) by stating that her position had been filled. Three days later, Houston Funding sent Venters a termination letter, stating that Venters was terminated due to job abandonment.

Venters filed a charge with the Equal Employment Opportunity Commission (EEOC), which filed suit against Houston Funding alleging sex discrimination, including pregnancy, childbirth, or related medical conditions, in violation of the Pregnancy Discrimination Act (PDA), an amendment to Title VII. Houston Funding argued to the district court that the prohibitions of Title VII do not include "breast pump discrimination." The district court agreed, and dismissed that case against Houston Funding. Specifically, the district court held that terminating employment because of lactation or breast feeding is not sex discrimination, and that lactation is not a related medical condition of pregnancy or childbirth that is protected by the PDA.

On appeal, the Fifth Circuit disagreed on all counts. The court first held that discharging an employee because she is lactating or expressing breast milk states a viable sex discrimination claim under Title VII, in that "[a]n adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not — indeed, could not — suffer." The court also held that lactation is a related medical condition of pregnancy for purposes of the PDA, noting: "It is undisputed in this appeal that lactation is a physiological result of being pregnant and bearing a child." Finally, the court found that the EEOC had presented evidence that Houston Funding's stated reason for the termination, job abandonment, was pretexual. The Fifth Circuit remanded the case for trial on Venters' claims.

Protections Already Exist for Most Lactating Employees

While this case does reflect a clear expansion of the protections of the PDA, the ruling does not go any further than holding that an employee cannot be discharged because of the fact that she is lactating or breastfeeding. The holding does not grant lactating employees any affirmative right to accommodation for breastfeeding. However, note that the types of protected activity that may give rise to a cause of action under Title VII arguably are now expanded to include requests related to breastfeeding accommodation.

For many employers, the practical impact of the decision is further marginalized by the fact that many state laws already afford breastfeeding employees affirmative rights and protections. Federal law also does so. The recently enacted Affordable Care Act amended the Fair Labor Standards Act to require employers to provide break time and a private space (other than a bathroom) for an employee to express breast milk for up to a year after childbirth.