The facts of life
By Victoria Ni, Senior Attorney
Sometime during early childhood, I’m sure you picked up these facts of life: Only women can bear children, and only women can produce breastmilk. It’s human biology. There are no exceptions. But for courts, nothing — not even human biology — is as straightforward as it may seem.
Indeed, it took an appeal to the U.S. Court of Appeals for the Fifth Circuit in EEOC v. Houston Funding II, Ltd. (and, undoubtedly, hundreds of pages of briefing) to establish that if an employer treats an employee badly because she’s lactating, then the employer is treating her badly because she is a woman and in violation of the federal anti-discrimination law known as Title VII. This was, remarkably, the first time any court had reached that conclusion. And the lower court had come to the opposite conclusion, saying that after Domicia Venters was essentially fired on the spot when she asked if she could pump milk at work, neither she nor the EEOC could sue for sex discrimination. According to the lower court: “[T]he law does not punish lactation discrimination.”
Thankfully, the appeals court remembered the facts of life and sensibly held that Venters’ claim she was fired “because she was lactating or expressing milk states a cognizable Title VII sex discrimination claim.” The court went on to explain: “An adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not — indeed, could not — suffer.”
This common-sense link between women and their biology is often ignored in the law. Not so long ago, in General Electric Co. v. Gilbert, the U.S. Supreme Court held that discrimination on the basis of pregnancy was not the same as sex discrimination. It took Congressional action in the form of the Pregnancy Discrimination Act of 1978 to clarify that illegal discrimination “on the basis of sex” also meant discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”
Thirty-five years after the passage of that Act, we see more pregnant women than ever in the workplace — their incomes crucial to sustaining their families — and yet the law and the courts are still struggling to embrace that reality. Occasionally, victories like Houston Funding give us reason to cheer, but more often we see pregnant women and new mothers continuing to face barriers and experience discrimination at work. Last month’s report by the National Women’s Law Center and A Better Balance describes how pregnant workers are often denied the accommodations they need, such as light duty or bathroom breaks, even as workers who suffer from other kinds of medical conditions are given such accommodations.
The concurrence in Houston Funding also shows just how far we still have to go. Judge Edith Jones, while agreeing with the majority holding, was quick to note that the law, at the time the lawsuit was filed, would not have required an employer to provide any special accommodations for a mother desiring to pump milk at work. If such an accommodation were required, she wrote, “one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday.”
Slippery slope arguments notwithstanding, the law is slowly changing to acknowledge the needs of mothers and caregivers in the workplace. The Fair Labor Standards Act, for example, now requires certain employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth” in “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.”
No word yet on whether babies are showing up at workplaces everywhere.