bottle of milk and pacifier

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Title VII and Pregnancy Discrimination Act could protect breastfeeding mothers at work 

Some women do it in the break room. Other women do it in their office. What about men? Well, they never do it. Pump breast milk, that is.

Employers have had the last four years to get used to the break time requirement for nursing mothers. But now the risks for employers who do not accommodate their lactating employees have become even greater.

Now that nursing mothers are given the time and place to express milk at work (thanks to a 2010 amendment to the FLSA), more mothers are likely to continue lactating upon returning to work from maternity leave. While the FLSA has a break time and location requirement for non-exempt lactating employees, it does not protect an employee from discrimination or discharge because she lactates or takes breaks to express milk at work. But, according to an interesting case out of the Fifth Circuit, the FLSA is not the only law that offers protection to lactating employees. In the Fifth Circuit, discriminating or discharging an employee because she is lactating or expresses milk amounts to sex discrimination under Title VII and the Pregnancy Discrimination Act.

What Do You Mean Men Can’t Lactate?

In EEOC v. Houston Funding II, the Fifth Circuit Court of Appeals Court found that the employer’s decision to discharge an employee because she needed to express milk at work “imposes upon women a burden that male employees need not – indeed, could not – suffer.” The Court found that the employer’s actions amounted to unlawful sex discrimination under Title VII and the Pregnancy Discrimination Act.

What does this mean for employers other than that men clearly can’t lactate? That they should be aware of a new protected class and seriously consider accommodating the needs of a lactating employee now to avoid a “lactation discrimination” claim later.