UPDATE: NLRB employee union rights poster rule thrown out in court

On June 14, 2013, the U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia, also ruled that the National Labor Relations Board overstepped its authority by issuing a rule that would have required employers to post notices informing workers of their rights under federal labor law, including the right to unionize. That court covers the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Federal Appeals Court Protects Rights of Lactating Employees in the Workplace

In a precedent-setting decision that should be of interest all private sector employers, a federal appeals court has ruled that discharging a female employee because she is lactating or expressing breast milk in the workplace constitutes sex discrimination in violation of federal anti-discrimination laws.

The U.S. Equal Employment Opportunity Commission (“EEOC”), on behalf of employee

Donnicia Venters (“Venters”), had sued Texas companies Houston Funding II, Ltd. and Houston Funding Corp. (“Houston Funding”) in July of 2011.  The EEOC alleged that they had unlawfully discharged Venters, a new mother, because she was lactating and wanted to express milk at work. The EEOC alleged that Houston Funding had unlawfully discriminated against Venters based upon her sex, including her pregnancy, childbirth, or related medical conditions, by ending her employment.  According to the EEOC, the discharge violated Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act of 1978, which specifically protects against workplace discrimination based on an employee’s pregnancy.

In finding workplace discrimination in the Venters case, the federal Fifth Circuit Court of Appeals in New Orleans reversed the decision of the trial court, which had come to the opposite conclusion and ruled in favor of the employer. U.S. District Judge Lynn N. Hughes of the Southern District of Texas court in Houston had concluded in a February 2012 order that “lactation is not pregnancy, childbirth, or a related medical condition. Firing someone because of lactation or breast pumping is not sex discrimination. The law does not punish lactation discrimination”.

The Fifth Circuit covers the states of Louisiana, Mississippi, and Texas, but federal district courts in Florida often look to its decisions for guidance.

Venters had worked as an account representative/collector for Houston Funding from March 2006 until she was fired in February 2009. In December of 2008 she took a maternity leave of absence and ten days later gave birth to a girl. During one conversation with a male supervisor during her leave, Venters informed her employer that she was breastfeeding her baby and asked whether it might be possible for her to use a breast pump at work upon her return. Her request was peremptorily denied on the telephone by the supervisor.

Venters had suffered complications from her C-section and had to stay away from work slightly longer than anticipated.  In February of 2009 she called her employer to inform that her doctor had released her to return to work, and she mentioned again that she was lactating, and asked whether she could use a back room to pump milk.  After a long pause, she was informed on the phone that her position had been filled during her absence.  She then received a letter from her employer telling her that she was had been discharged due to “job abandonment”. The EEOC argued in court that the reason given by the employer was false and a pretext for discrimination.

The Fifth Circuit found in its May 30, 2013, decision that Title VII covers a “far range” of employment decisions “entailing female physiology”. Writing for a unanimous panel of three judges, Circuit Judge E. Grady Jolly stated: “We hold that lactation is a related medical condition of pregnancy. Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth. Lactation is a physiological result of being pregnant and bearing a child.”

Accordingly, the Fifth Circuit vacated the trial court’s summary judgment order in favor of Houston Funding and sent the case back to Judge Hughes in Houston for a trial to be held.

"Now that the Fifth Circuit has reaffirmed the EEOC's long-standing position about the broad coverage of the Pregnancy Discrimination Act, we look forward to trying the underlying case," said Claudia Molina-Antanaitis, trial attorney in the EEOC's Houston District Office which filed the lawsuit.  "We hope this litigation sends a message to other women that discrimination based on pregnancy, childbirth, and related conditions is against the law and that the EEOC is here to help."

One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan is for the Commission to address emerging and developing issues in equal employment law, including issues involving pregnancy-related limitations.

Besides the possibility of sex discrimination claims, private sector employers need to be aware that the federal wage and hour laws enforced by the U.S. Department of Labor now includes specific provisions protecting lactating non-exempt (i.e., hourly paid) employees in the workplace.  So do the state laws of some states. Failing to follow those provisions can also result in workplace claims.

Under the federal Fair Labor Standards Act of 1938 (“FLSA”), an employer must generally provide “reasonable break time for an employee to express breast milk for her nursing child for one (1) year after the child’s birth each time such employee has need to express the milk.”  Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

According to the Labor Department, a workplace bathroom, even if private, is not a permissible location.  The location provided must be functional as a space for expressing breast milk.  If the space is not dedicated to the nursing mother’s use, it must be available when needed in order to meet the statutory requirement.  A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient, provided that the space is shielded from view, and free from any intrusion from co-workers and the public. 

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk.  However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same manner that other employees are compensated for break time.  In addition, the FLSA’s general requirement that the employee must be completely relieved from duty during a break, or else the time must be compensated as work time, applies.

Employers with fewer than 50 employees may be exempt if they can establish an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. 

The employee lactation provisions were added to the FLSA by the Patient Protection and Affordable Care Act (“Obamacare”), and became effective on March 23, 2010.

According to the U.S. Centers for Disease Control and Prevention, approximately 75 percent of mothers start breastfeeding immediately after birth, but less than 15 percent of them are still breastfeeding exclusively six months later. As a part of the “Healthy People 2020 initiative”, the national goal is to increase the proportion of mothers who breastfeed their babies in the early postpartum period to 81.9 percent by the year 2020. 

The protection of lactating employees in the workplace at the state level varies greatly from state to state.  Forty-five states (including Florida), the District of Columbia, and the U.S. Virgin Islands have laws that specifically allow women to breastfeed in any public or private location, while 24 states (although not Florida), the District of Columbia, and Puerto Rico have laws related to breastfeeding in the workplace.

For example, the New York Labor Law states that employers must allow breastfeeding mothers reasonable unpaid break times to express milk, and make a reasonable attempt to provide a private location for her to do so.  It also prohibits employment discrimination against breastfeeding mothers. Similarly, the California Labor Code provides that employers need to allow a break and provide a room for a mother who desires to express milk in private while at work. And in Puerto Rico local laws provide that breastfeeding employees must have the opportunity to breastfeed their babies for half an hour within the full-time working day for a maximum duration of 12 months.