Firing a Woman Because She is Lactating or Expressing Milk Constitutes Unlawful Gender Discrimination.

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Last year the United States Equal Employment Opportunity Commission listed accommodating pregnancy-related limitations as an emerging issue and a national priority on which it intended to focus.

In EEOC v. Houston Funding II Ltd., the Fifth Circuit Court of Appeals held that firing a woman because she is lactating or expressing milk constitutes unlawful gender discrimination under Title VII of the Civil Rights Act of 1964 (as amended by the Pregnancy Discrimination Act of 1978).  The Pregnancy Discrimination Act amended Title VII to prohibit employment discrimination based on pregnancy, childbirth, or related medical conditions.

In Houston Funding, an account representative became pregnant and went out on maternity leave.  In anticipation of her return to work, the employee asked her boss if she could use her breast pump at work in the back room of the office.  The employee claimed the boss denied her request and then later told her that her position had been filled.  A few days later, the employee received a letter terminating her employment citing job abandonment.  The employee sued claiming gender discrimination under Title VII.

The trial court dismissed the case on the employer’s motion for summary judgment reasoning that lactation was not a condition related to pregnancy because it did not start until the pregnancy had ended.

On appeal, the Fifth Circuit  held that lactation is a physiological condition distinct to women who have undergone pregnancy.  According to the court, firing a woman because she is lactating or expressing milk amounts to unlawful gender discrimination under Title VII and the Pregnancy Discrimination Act because an employer—as a matter of biology—could not fire a man for the same reason.

While the EEOC’s victory in Houston Funding seems like a common-sense result, it represents a significant development for the agency and its efforts to pursue pregnancy discrimination claims


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