A little over a year ago we blogged about a Texas federal trial court ruling that Title VII did not cover lactation in the case EEOC v. Houston Funding II, Ltd.Click here for link to post.  Now, the Fifth Circuit Court of Appeals, which has jurisdiction over Texas, has reversed the trial court and issued a landmark decision in finding that interference with lactation at work is a type of sex discrimination covered under Title VII.  Click here for Fifth Circuit’s opinion.

The plaintiff, Donnica Venters, took a three-month leave of absence following the birth of her child.  During her leave of absence, Venters told her supervisor that she was breast feeding her child and asked if she could use a breast pump when she returned to work.  The supervisor said “No” and suggested that she stay home longer.  When Venters was released to return to work she called her supervisor and, again, mentioned that she was lactating and asked whether she could use the back room to pump milk.  The supervisor responded that the company had already filled her spot.  Three days later Houston Funding mailed Venters a termination letter stating that she was discharged due to job abandonment.

Venters filed a charge of discrimination and on her behalf the Equal Employment Opportunity Commission filed a lawsuit against Houston Funding.  As discussed in our earlier blog post, the trial court issued summary judgment for Houston Funding finding that lactation or breast pumping is not a type of sex discrimination under Title VII.

The Fifth Circuit disagreed.  It analyzed that the Pregnancy Discrimination Act amended Title VII to expand “sex” to include “because of or on the basis of pregnancy childbirth, or related medical conditions…”  The court then found that lactation is a “related medical condition” of pregnancy and held that there was “triable evidence from which a factfinder may conclude that Houston Funding violated Title VII by discharging Ms. Venters.”

The court was careful to note that Title VII did not require an employer to offer special accommodations to lactating employees.  But, for example, if an employer had allowed break time to non-lactating employees due to a disability unrelated to pregnancy, it might be be obliged to offer a lactating employee a similar accommodation.  Regardless of accommodations for other non-lactating employees, current federal law requires an employer to provide break time for an employee to express breast milk and Florida law permits breastfeeding if, for instance, the child is being cared for onsite.

If not doing so already, employers need to be cognizant of these protections for women who are breastfeeding and/or pumping breast milk.  The EEOC has recently stated that addressing issues regarding pregnancy-related limitations is one of its national priorities.