Firing Lactating Mom May Be Discrimination

     (CN) – The 5th Circuit revived sex-discrimination claims filed on behalf of a woman who allegedly lost her job because she wanted to pump breast milk at work.
     Donnica Venters was allegedly ready to return to work at Houston Funding in February 2009 after two months of maternity leave.
     While coordinating her return with Houston Funding president Harry Cagle, Venters made a request to express breast milk at the office, according to the June 2011 complaint filed by the Equal Employment Opportunity Commission.
     Cagle then allegedly changed his friendly tone and told Venters that the company had filled her position.
     But U.S. District Judge Lynn Hughes tossed the suit against Houston Funding II and Houston Funding Corp. in February 2012, finding that “firing someone because of lactation or breast-pumping is not sex discrimination.”
     A three-judge panel of the New Orleans-based 5th Circuit reversed last week.
     Lactating or expressing breast milk qualifies as a medical condition related to pregnancy and falls under the protection of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act (PDA), according to the ruling.
     “An adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not – indeed, could not – suffer,” according to the lead opinion by Judge E. Grady Jolly.
     “The issue here is not whether Venters was entitled to special accommodations – at the time, she was not entitled to special accommodations under Title VII – but, rather, whether Houston Funding took an adverse employment action against her, namely, discharging her, because she was lactating and expressing breast milk,” Jolly clarified in a footnote.
     “The record before us reflects that Venters asked Cagle whether she would be permitted to use a breast pump while at work,” Jolly wrote. “The record also shows that Cagle demonstrated hostility toward such an accommodation. In its motion for summary judgment, Houston Funding contended Venters was fired because she inquired about whether she would be allowed to use a breast pump. Simply posing this question is not alleged to be a terminable offense. But nothing in this opinion should be interpreted as precluding an employer’s defense that it fired an employee because that employee demanded accommodations. Houston Funding, however, apparently contends Venters was discharged for job abandonment, so it is uncertain whether this issue will arise in this case, if and when it is tried.”
     In an opinion concurring in judgment, Judge Edith Jones said Venters would not have a claim under Title VII or the PDA as of the date of her lawsuit if she “intended to request special facilities or down time during work to pump or ‘express’ breast milk.”
     The case will return to the Southern District of Texas for further proceedings.
     EEOC trial attorney Claudia Molina-Antanaitis said the ruling reaffirms the commission’s “long-standing position about the broad coverage of the Pregnancy Discrimination Act.”
     “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,” Molina-Antanaitis said in a statement.

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