Are Lactating Employees Afforded Special Accommodations?

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• Discrimination Based on Pregnancy Prohibited
• Is Lactating Covered By the PDA?

Despite numerous laws against employment discrimination, as well as expanding awareness of employee rights, certain practices persist. In 2012, a police officer in Tuscaloosa, Alabama faced harassment and discrimination on her return to work after having a baby. In the end, her case provided an opportunity for the Eleventh Circuit (which governs Alabama, Florida and Georgia) to clarify what constitutes gender-based pregnancy discrimination.

Discrimination Based on Pregnancy Prohibited

The federal Pregnancy Discrimination Act of 1978, federallaw explicitly amended the concept of gender-based discrimination under Title VII of the Civil Rights Act to include “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.” Employers are required to treat pregnant women, and women who have recently given birth, to the same types of reasonable accommodations as would be afforded others with limitations arising from non-pregnancy-related conditions. In the case of a police officer, this might mean being placed temporarily on light-duty work, and being provided with a reasonable breaktime and space accommodations to express breast milk . However, police officer Stephanie Hicks’ direct supervisor admitted that it “bothered” her that Hicks was not required to work on-call while pregnant, and encouraged her to take only six weeks of maternity leave, rather than the 12 guaranteed under the Family Medical Leave Act (FMLA). The same supervisor wrote her up on her return for taking 12 weeks. Hicks was required to pump in a common locker room, in view of others, and was mocked by her co-workers. She was demoted and put back on patrol, where she was required to wear a ballistic vest deemed by her doctor to impede lactation and cause infections. When Hicks requested reassignment on this basis, she was denied, and was told to work without the ballistic vest protection. Finding this proposition untenably dangerous, she resigned and brought a claim for discrimination and constructive discharge—that her working conditions had become so onerous that it was tantamount to being fired.

Is Lactating Covered By the PDA?

While it was pretty obvious that her employer had violated the FMLA provisions affording all employees up to 12 weeks of unpaid leave for maternity leave without fear of reprisal, what was less clear was whether PDA accommodations extend to breastfeeding employees. The U.S. Supreme Court has not addressed this issue, leaving it to circuits to interpret the law. To date, most courts have extended protection to nursing mothers, finding an inextricable connection between lactating and pregnancy, and therefore precluding employment-related bias. But this case took the issue further, stating that while lactating employees are not entitled to ‘special’ accommodations, they are, per the PDA, entitled to accommodations that would be afforded someone with a similar limitation for another reason. In the Hicks case, the court found that the Tuscaloosa Police Department’s failure to make reasonable efforts to provide light duty, lactation breaks and a private space to nurse or breast pump violated the PDA. Most private companies are implementing a lactation accommodation policy and how employees should make an accommodation request. If you or someone you know has encountered an unsupportive response from their employer to pregnancy, nursing or other reproductive-related condition, talk to an experienced employment law attorney. For more information about this area, see our overviews on employment law for employees, sexual harassment and discrimination.