On Monday, in EEOC v. Houston Funding II, Ltd., the
EEOC argued to the Fifth Circuit that Title VII protects women from
being fired for lactation and breast pumping at work. The
charging party -- Donnicia Venters – was fired allegedly
for stating her intent to use a breast pump upon her return from
pregnancy leave. The EEOC advanced two claims:
(a) violation of Title VII's prohibition against sex
discrimination, and (b) violation of the Pregnancy Discrimination
Act, which bars employment discrimination based on "pregnancy,
childbirth, or related medical conditions."
The EEOC argued that discrimination based on breastfeeding or
any other sex-specific trait is per se sex discrimination, even
apart from the PDA. The EEOC' s position has serious
internal contradictions. Of course breastfeeding is a
sex-specific trait, but no more so than pregnancy and
childbirth. If discrimination based on a sex-specific trait
constitutes sex discrimination barred under Title VII, then what
does the Pregnancy Discrimination Act add? Apparently,
the EEOC believes the PDA is redundant and prohibits nothing not
already prohibited under Title VII's ban against sex
In General Electric Company v. Gilbert, 429 U. S. 125
(1976), the Supreme Court held that discrimination based on
pregnancy was not discrimination based on sex (at least not
disparate treatment). The case involved health
insurance benefits that excluded coverage for pregnancy.
Congress responded to the decision with the Pregnancy
Oddly, in Houston Funding, the EEOC' s primary
argument was under Title VII, not the PDA, which was its secondary
argument. Gilbert, which is still good law to the
extent not superseded by the PDA, closes the door on the EEOC's
Title VII argument. The EEOC mentions Gilbert but
spends many pages dancing around the precedent, essentially arguing
that Gilbert is bad law, albeit without using those
The better argument is that breastfeeding is protected under the
PDA. To prevail on that claim, the EEOC must persuade the
court that the need to breastfeed or use a breast pump is a
"medical condition" related to pregnancy. That
statutory language may not be ideal, but neither would it require a
hernial reach to accept that producing breast milk is a
"medical" condition caused by pregnancy and
The Fair Labor Standards Act provides new legal protection that
Venters did not have when she gave birth to her baby in 2008.
Effective March 23, 2010, the Patient Protection and Affordable
Care Act, also known as the Healthcare Reform Act (HRA), amended
the FLSA to require most employers to provide a nursing mother
break time to pump. Covered employers must provide reasonable
break time for an employee to express breast milk for her nursing
child for one year after the child's birth each time the
employee has need to express milk. See 29 U.S.C. § 207(r).
Employers must also provide a place, other than a bathroom, that is
shielded from view and free from intrusion from co-workers and the
public, which may be used by an employee to express breast milk.
Id. The FLSA amendment does not require employers to
pay employees for such break time. Id.
However, presently before the Supreme Court is a constitutional
challenge to certain provisions of the HRA (not the FLSA
amendments). It is possible, albeit unlikely, that the
Supreme Court's decision will invalidate the entire HRA.
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A female employee traveling for her employer met a "friend" and at her motel room with him became "injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her."