Fifth Circuit Holds that Firing a Nursing Mother for Expressing Breast Milk Violates Title VII


This article was written by Thompson Burton commercial litigation attorney, Melissa Martin Burton. Melissa has represented clients before the Equal Employment Opportunity Commission and in state and federal courts. Melissa has defended employers against claims for discrimination based on age, gender, and race. 

breastfeeding at workIn Equal Employment Opportunity Commission v. Houston Funding II, Ltd., No. 12-20220, 2013 WL 2360114 (5th Cir. May 30, 2013), the U.S. Court of Appeals for the Fifth Circuit held late last month that “discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.” The employee, Donnicia Venters, was told that her position had been filled after she asked her employer whether she could use space in a back room at work to express breast milk.  In the opinion, the Fifth Circuit holds that “lactation is a medical condition of pregnancy for the purposes of the” Pregnancy Discrimination Act (“PDA”). As a result, Venters’ argument that her dismissal because she was lactating or expressing milk “state[d] a cognizable Title VII sex discrimination claim.”

However, in both a footnote and in Judge Edith Jones’ concurrence, the Fifth Circuit noted that the PDA does not “mandate special accommodations to women because of pregnancy or related conditions,” including special facilities or breaks from work to express breast milk.  In her concurrence, Judge Jones even questions “if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.”

Although this decision is a positive one for women who seek to breastfeed, it certainly has its limitations, as Judge Jones points out.  It seems that, at least for now, the fight to have employers accommodate nursing mothers will remain de facto one and not de jure.  Given that the American Academy of Pediatrics recommends that infants be exclusively breastfed for six months and that breastfeeding is proven to provide numerous health benefits to both the children and the mothers, hopefully, more workplaces will begin to accommodate breastfeeding mothers voluntarily because of the health benefits it offers their employees and their children.  Health benefits to employees and children undoubtedly benefit the employers as well because of reduced sick time and cost of health insurance benefits.  As this fight continues, mothers seeking lactation accommodations from their employers should continue to educate their employers about the benefits of breastfeeding and provide examples of how, in many cases, lactating mothers can express breast milk with minimal (or no) interruptions in their work schedule when they are provided with the appropriate facilities and schedule.

This win for the EEOC signals that the agency will continue to show support for protecting working women and the right to breastfeed in the workplace. Accordingly, it is important for employers to take heed of the EEOC’s efforts and ensure that workplace policies, including employee handbooks, are consistent with this evolving aspect of employment law.

Should you wish to discuss your company’s employment practices, please contact the members of Thompson Burton’s Litigation & Dispute Resolution team.