by Travis R. Hollifield
Working parents unquestionably have numerous, and often competing, priorities to manage. While balancing the needs of their careers with familial obligations, tensions between working parents and their employers can often arise. Regrettably, while both male and female parents can face difficult issues balancing work and childcare duties, certain persistent stereotypes and biases about a woman’s role in the workplace make some challenges unique to them. In the decades since the enactment of Title VII of the Civil Rights Act (Title VII) in 1964 and the Pregnancy Discrimination Act (PDA) in 1978, federal and state legislators have continued to address working women’s unique concerns and struggles in an attempt to achieve some semblance of equality of treatment in the labor force. Courts, in turn, have sought to apply the fruits of these legislative endeavors to factual circumstances that can present unique and vexing legal issues. This article focuses on one such issue, that of the emerging protections for nursing mothers in the workplace.
In recent years, courts have adjudicated claims involving allegations of discriminatory treatment based on the needs of new mothers who are lactating and need to express breast milk for their children during working hours. Three watershed moments in the development of legal protections for working and lactating mothers occurred in 2013 and 2015 respectively. First, in 2013, the Fifth Circuit Court of Appeals became the first federal appellate court to explicitly hold that lactation discrimination constitutes pregnancy and sex discrimination in violation of Title VII and the PDA.1 Second, in 2015, the U.S. Supreme Court recognized that working women who are pregnant or have pregnancy-related medical conditions may pursue a “failure to accommodate” theory against their employers under Title VII.2 Finally, and also occurring in 2015, the Equal Employment Opportunity Commission (EEOC) formally adopted the policy position that lactation is protected by Title VII/PDA.3 These seminal events addressing lactation discrimination evolved as follows.
The Fifth Circuit’s Lactation Discrimination Holding
In EEOC v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013), an account representative employee returning from maternity leave named Donnicia Venters notified her employer that she was lactating and asked whether there were any rooms available for her to pump at work.4 The employer summarily terminated her.5 During the EEOC’s investigation into the employee’s charge of discrimination, the employer claimed that Venters was fired because she had not contacted her supervisor during her maternity leave and did not attempt to return to work.6 The EEOC nevertheless elected to bring a lawsuit against the employer in a Texas federal district court alleging violation of Title VII and PDA under a sex and pregnancy discrimination theory based on Venters’ lactation.7 The district court granted summary judgment to the employer finding that “[f]iring someone because of lactation or breast-pumping is not sex discrimination,” and that lactation is not a medical condition related to pregnancy.8 The Fifth Circuit disagreed with both findings and reversed.
The Fifth Circuit held that since the enactment of the PDA’s 1978 amendment of Title VII, with its language prohibiting discrimination against “pregnancy, childbirth, and related medical conditions,” the courts have interpreted Title VII to cover a wide range of employment decisions entailing female physiology.9 Analogizing to an earlier Fifth Circuit case that found that discrimination against a person who was denied employment opportunities because her menstrual cycle and not yet re-emerged after pregnancy was prohibited under Title VII/PDA, the court determined that lactation and expressing milk are indeed aspects of female physiology that, like menstruation, are “related medical condition(s)” of pregnancy for purposes of the statute.10 After describing the lactation process in some detail, the Fifth Circuit found that “lactation is the physiological result of being pregnant and bearing a child” and that it is a “normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter.”11 As a result, the court held that discrimination against lactation is contrary to Title VII/PDA, and the case was remanded to the district court with directions to proceed with trial.12
While this was certainly a victory for Venters and for the many women who need both to be at work and lactate simultaneously, a concurring opinion by one of the circuit court panel members rejected the idea that employers are required to provide any “accommodations” under Title VII/PDA to women who need special facilities and down time during work to express breast milk.13 While this doubt was perhaps a legitimate position to be taken, as discussed next, the issue of whether and to what extent employers must provide accommodations to pregnant workers or those with pregnancy-related medical conditions was substantially resolved by the U.S. Supreme Court in 2015.
The Duty to Accommodate Pregnant Workers
In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), Peggy Young was a part-time driver for UPS. After suffering several miscarriages, she became pregnant again. Young’s doctor placed her on certain lifting restrictions for the duration of the pregnancy. UPS responded by telling her she could not work while on a lifting restriction. Young was, therefore, forced to take a leave period during which time she lost her health insurance. She ultimately filed suit alleging violation of Title VII/PDA in a federal district court in Maryland where the court granted summary judgment in favor of UPS, which was affirmed by the Fourth Circuit Court of Appeals.
In vacating the judgment, the Supreme Court clarified that a working woman who is pregnant or has a pregnancy related medical condition can make out a prima facie case of discrimination under Title VII and the amendatory PDA by showing that “she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in the ability or inability to work.’”14 The burden then shifts to the employer to come forward with a “‘legitimate, nondiscriminatory’ reason[ ] for denying her accommodation.”15 However, under the PDA, that justification “cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those…whom the employer accommodates.”16 If the employer proffers such a legitimate, nondiscriminatory reason, then the burden shifts back to the plaintiff to show that the reason was pretextual.17
The Supreme Court explained that in a pregnancy-related, failure-to-accommodate case, in addition to the traditional methods of establishing pretext (such as showing that the employer’s reason was not plausible, was contradicted by other evidence, or that the employer offered shifting rationales), an aggrieved employee may also “reach a jury…by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, non-discriminatory’ reasons are not sufficiently strong to justify the burden.”18 One way that an employee may make this showing is by “producing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.”19
Although Young did not deal directly with discrimination against lactation or some other medical condition related to pregnancy (the issue in Young was the mere condition of being pregnant), there is no principled reason why the same reasoning would not extend to working and lactating women. Indeed, subsequent lower courts have concluded that the Young model of proving a Title VII/PDA claim can be applied to lactation discrimination claims.20
Therefore, the Young case essentially provides working and nursing mothers with an additional method of seeking relief in the event their employers (at least those employers covered by Title VII/PDA) do not grant any accommodation to provide adequate time or facilities to express milk at work. As discussed next, the EEOC agrees that lactation is a trait protected by Title VII/PDA.
EEOC Declares Lactation is Protected by Title VII/PDA
On June 25, 2015, just three months after the U.S. Supreme Court decided Young, the EEOC formally adopted the position that lactation is protected by the PDA.21
As it explains, “[l]actation, the postpartum production of milk, is a physiological process triggered by hormones.”22 “To continue producing an adequate milk supply and to avoid painful complications associated with delays in expressing milk, a nursing mother will typically need to breastfeed or express breast milk using a pump” several times during the workday.23 Under the PDA:
“An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions, then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.
Finally, because only women lactate, a practice that singles out lactation or breastfeeding for less favorable treatment affects only women and therefore is facially sex-based. For example, it would violate Title VII for an employer to freely permit employees to use break time for personal reasons except to express breast milk.”24
The EEOC’s interpretation of the PDA supplies “a body of experience and informed judgment to which courts and litigants may properly resort for guidance.”25 In recent years, courts have followed this guidance in cases involving allegations of discrimination and retaliation under Title VII/PDA in circumstances involving lactating employees.26
Courts and commentators have noted that the condition of lactation, if left to itself without regular expression, “can be quite disabling[.] [W]hen a woman is unable to relieve the buildup of milk in the breasts, [the result may be] breast and back pain, plugged ducts, and breast infection.”27 The fact that this medical condition is at times a result of a decision made by the mother to breastfeed does not mean that it is not a medical condition or that it is unrelated to pregnancy.28
The EEOC guidance reflects the agency’s concerns primarily with employers providing sufficient time for working nursing mothers to express milk. However, there are additional workplace issues that arise concerning the nature or type of facilities that employers should provide to allow their employees to express milk in safe and sanitary environments. Interestingly, the only federal statute that deals directly with workplace lactation facilities is not Title VII/PDA. It is instead, strangely enough, found in the Fair Labor Standards Act (FLSA).
FLSA Mandates Break Time and Facilities for Lactating Employees
It slipped under some individuals’ radar in 2010 that the Affordable Care Act amended the FLSA to require employers to provide 1) a reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk; and 2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.29 The break itself is noncompensable time.30 In this author’s view, the problem is that there is no real remedy against employers who fail to comply. This is so because the FLSA limits liability for violations of §207(r) to unpaid minimum or overtime wages.31
Even the Department of Labor has recognized the toothless character of §207(r) in addressing this issue: “Because employers are not required to compensate employees for break time to express breast milk, in most circumstances there will not be any unpaid minimum wage or overtime compensation associated with the failure to provide such breaks.”32
Courts have also recognized the futility of a plaintiff seeking to bring a §207(r) claim due to the lack of a cognizable remedy.33 But all is not lost for all plaintiffs all the time. To the contrary, a related section in the FLSA may, under appropriate factual circumstances, be applied to provide a remedy for a class of wrongdoing attributable to an employer. That statutory subsection, §215(a)(3), prohibits retaliation against employees for “filing complaints” about employers’ failures to comply with the FLSA including §207(r).34
A recent case from a federal district court in Rhode Island provides an illustrative example.35 In the dispute, Allison Mayer was hired by an ambulance company to work as an EMT for three overnight 12-hour shifts a week.36 Immediately after being offered the job, Mayer told one of the owner/managers that she was still breastfeeding, needed to express breast milk on breaks, and that she had done so at her prior ambulance position without any problems.37 Right after that, the manager’s tone suddenly changed and Mayer was told she could express milk only in the company’s bathroom.38 Mayer complained that an unsanitary bathroom was not appropriate.39 The manager appeared displeased and then, after a consultation with another owner/manager, Mayer was informed that she could use a specific office to pump.40 However, that office proved to be unsuitable as well since it had a window looking onto the work area with only a flimsy covering, the room was not secure, and the walls were so thin that male co-workers could hear her pumping inside.41 After this awkward beginning, and a subsequent failed attempt at using an unheated conference room to pump, matters worsened when the company would not put Mayer on the schedule to work despite several promises to do so. Then she was suddenly dismissed ostensibly for being rude.42
Mayer then brought suit under several theories, including alleged violations of the FLSA at 29 U.S.C. §207(r) (the provision covering breaks to express breast milk) and §215(a)(3) (the provision covering retaliation) along with Title VII claims under both sex/pregnancy discrimination and hostile work environment theories.43 The employer moved to dismiss the complaint.
The court rejected the §207(r) theory but expressly permitted Mayer to move forward with her retaliation claim under §215(a)(3) based on her stated complaints concerning the employer’s alleged failure to comply with §207(r).44 The court reasoned that Mayer had sufficiently pled, for purposes of surviving the employer’s motion to dismiss, at least two instances in which she complained about an insufficient “place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”45 The court stated that the actual sufficiency of the facilities provided to Mayer were “a question for a later date.”46
This case shows that it is possible for employees to proceed on an FLSA §215(a)(3) retaliation theory based on an employer’s purported failure to comply with the mandates of §207(r) regarding break time and proper facilities for working mothers to express breast milk during working hours and at an employer’s location. However, the aggrieved employee would have to show that the employer took some sort of adverse retaliatory action after a complaint that the requirements of §207(r) were not being met. It would be insufficient to show merely that the break time and proper facility was denied. Moreover, the complaint made by the employee needs to be reasonably clear.47
Next, the court also permitted Mayer to move past the motion-to-dismiss phase on both her Title VII sex/pregnancy discrimination and hostile work environment claims.48 While the survival of the “straight-up” discrimination claim is not surprising given the averments of the complaint, the court also found that, given several allegations of untoward conduct and comments while Mayer was attempting to pump at work, she could proceed on a hostile work environment theory as well. The hostile work environment allegations included male co-workers laughing, making louche comments about Mayer’s breasts, and suggesting that women were not as “strong” as men.49 The court held that since “lactation is a medical condition related to pregnancy, the alleged comments about [p]laintiff’s pumping could contribute to a hostile work environment” in violation of Title VII.50
Florida’s Civil Rights Act’s Added Layer of Protection
Although the bulk of this article focuses on federal protections for nursing mothers at work, Florida practitioners should be aware of two state statutes, one with a remedy and one without, that should be considered when engaging in any analysis of a potential lactation discrimination claim. The statute with the remedy is the Florida Civil Rights Act (FCRA), which was construed to prohibit pregnancy discrimination as a form of sex discrimination by the Florida Supreme Court in 2014.51 The FCRA was subsequently amended in 2015 by expressly adding the term “pregnancy” to the list of characteristics protected by that statute.52 Remedies are broad and include injunctive relief, compensatory damages, punitive damages, and fees and costs.53
The statutory provision without an express remedy or enforcement provision is part of F.S. Ch. 383 and is simply known as Florida’s breastfeeding statute.54 This provision, enacted in the early 1990s, states in pertinent part that “[t]he breastfeeding of a baby is an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values, and in furtherance of this goal, (1) [a] mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breastfeeding….”55 This provision does not expressly mention break time or mandate that employers provide sanitary facilities for breastfeeding. It also does not indicate whether the term “breastfeed her baby” also includes expressing milk manually or using a pump or other device for later consumption by the child.
However, this author posits that it may be possible in an appropriate case to utilize this statutory subsection in conjunction with Florida’s Whistleblower Act (FWA) in which a nursing mother objects to an employer’s failure to permit “breastfeeding” in the workplace and, as a result, suffers retaliatory adverse consequences.56
It may be stated with reasonable confidence that, based on the foregoing, there is now a solid national and state-based recognition of the need for protections for lactating mothers in the workplace. Whether under a sex/pregnancy discrimination, a Young-style failure to accommodate, a hostile work environment theory under Title VII/PDA, or a retaliation theory under the FLSA’s §215(a)(3) for complaints about an employer’s failure to provide the minimum break time and proper facility requirements of the FLSA’s §207(r) provision, a working mother now has a set of clearly defined remedies if she faces employer resistance when lactating at work.
For employers grappling with whether or how to accommodate nursing mothers in their respective labor forces, it may be wise to consider the adage that an ounce of prevention is worth a pound of cure. Thoughtful solutions, including temporary task reassignments, reasonable break times, and sanitary locations for the expression of milk, should be considered to allow working mothers to continue the balancing act of providing effective service to their employers while managing the early-life nutritional needs of the next generation.
1 EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (5th Cir. 2013).
2 Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1354 (2015).
3 See EEOC Guidance No. 915.003, Pregnancy and Related Issues, 2015 WL 4162723 (June 25, 2015).
4 Houston Funding II, Ltd., 717 F.3d at 427.
10 Id. at 428.
11 Id. at 428-29.
12 Id. at 430.
13 Id. at 430-431.
14 Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1354 (2015).
15 Id. (quoting McDonnel Douglas Corp. v. Green, 93 S. Ct. 1817 (1973)).
20 See, e.g., Allen-Brown v. District of Columbia, 174 F. Supp. 3d 463, 472-75 (D.D.C. 2016) (court relied on Young model of proof and lactating employee overcame summary judgment motion by employer).
21 See EEOC Guidance No. 915.003, Pregnancy and Related Issues, 2015 WL 4162723 (June 25, 2015).
22 Id. at *8.
23 Id. (internal footnote omitted).
24 Id. (internal footnotes omitted).
25 Skidmore v. Swift & Co., 323 U.S. 134 (1944).
26 See, e.g., Allen-Brown, 174 F. Supp. 3d at 463 (court relied on EEOC guidance and lactating employee overcame summary judgment motion by employer); Gonzales v. Marriott International, Inc., 142 F. Supp. 3d 961, 978 (C.D. Cal. 2015) (Lactating employee overcame motion to dismiss by employer; court noted in reliance on EEOC guidance that “an employee who is lactating ‘must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.’”); and Hicks v. City of Tuscaloosa, 2015 WL 6123209, at *19-22 (N.D. Ala. 2015) (Lactating employee overcame summary judgment motion by employer.).
27 Nicole Kennedy Orozco, Note, Pumping at Work: Protection from Lactation Discrimination in the Workplace, 71 Ohio St. L. J. 1281, 1314 (2010); see also Currier v. National Bd. of Medical Examiners, 965 N.E.2d 829, 836 (Mass. S.J. Ct. Norfolk 2012) (“A nursing mother…should express breast milk...to maintain milk production and avoid engorgement, blockage of milk ducts, galactoceles (milk retention cysts), mastitis (an infection of the breast caused by the blocked milk ducts), and breast abscesses.”).
28 Allen-Brown, 174 F. Supp. 3d at 480.
29 29 U.S.C. §207(r)(1)(A)-(B).
30 29 U.S.C. §207(r)(2).
31 29 U.S.C. §216(b).
32 Reasonable Break Time for Nursing Mothers, 75 FR 80073-01 (Dec. 21, 2010).
33 Mayer v. Professional Ambulance, LLC, 2016 WL 5678306, at *3-4 (D.R.I. 2016) (citing Hicks v. City of Tuscaloosa, 2015 WL 6123209 at *28 (N.D. Ala. 2015)).
34 29 U.S.C. §215(a)(3); Mayer 2016 WL 5678306, at *4.
35 Mayer, 2016 WL 5678306, at *3-4.
36 Id. at *1.
41 Id. at *1-2.
43 Id. at *1.
44 Id. at *4.
47 Miller v. Roche Surety and Casualty Co., Inc., 502 F. App’x 891, 894 (11th Cir. 2012) (For a complaint under the FLSA to be effective, “some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance.”).
48 Mayer, 2016 WL 5678306, at *5-8.
49 Id. at *7.
51 Delva v. The Continental Group, Inc., 137 So. 3d 371 (Fla. 2014) (finding that pregnancy is a naturally occurring condition unique to women and, therefore, discrimination based upon that trait constitutes discrimination “because of sex”).
52 Fla. Stat. 760.01, et seq. (2015).
53 Fla. Stat. §760.11(5) (2016).
54 Fla. Stat. §383.015 (2016).
55 Emphasis added.
56 Fla. Stat. §448.101-.105 (2016) (providing remedies for private sector whistleblowers who object to an actual or reasonably perceived violation of a “law, rule, or regulation,” which is defined as “any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business”).
Travis R. Hollifield is the founder of Hollifield Legal Centre in Winter Park, which focuses on working women’s legal rights, including FMLA, sexual harassment, pregnancy discrimination, and retaliation claims. He earned his B.A. from the University of Central Florida and his law degree from Nova Southeastern University. Hollifield is a member of the Labor and Employment Law Section of The Florida Bar and the National and Florida Employment Lawyers associations.
This column is submitted on behalf of the Labor and Employment Law Section, Leslie Weiner Langbein, chair, and Robert Eschenfelder, editor.