Oct 18

Got Breastmilk? Lactation a “Related Medical Condition” Under the Pregnancy Discrimination Act of 1978

By: Natalie D. Russell

In 2015, nearly four million children were born;[1] more than half of those children were born to mothers in the labor force.[2] These mothers do not resign during or after pregnancy.  Instead they work, seeking accommodations as needed.  During and after pregnancy, women are at risk of gestational hypertension, preeclampsia, post-partum hemorrhage,[3] post-partum depression and infections, to name a few medical conditions.  Prior to the Pregnancy Discrimination Act of 1978 (“PDA”), women were not offered protection against workplace discrimination for these pregnancy-related medical conditions.  The PDA amends Title VII to prohibit discrimination on the basis of pregnancy.[4] The PDA expands the definition of “because of sex” and “on the basis of sex” to include “on the basis of pregnancy, childbirth, or related medical conditions.”  Unfortunately, the PDA fails to give employers guidance on what conditions are covered under the expansive phrase “or related medical conditions.”  Specifically, many new mothers face a medical condition—lactation—that employers may dismiss as a choice rather than a medical condition.

As a matter of first impression, in E.E.O.C. v. Houston Funding II, Ltd.,[5] the Fifth Circuit held that lactation is a “related medical condition” under the PDA.[6] The Court relied on the plain meaning of “medical condition,” defined in the McGraw–Hill Concise Dictionary of Modern Medicine as “[a]ny condition—e.g., physiological, mental, or psychologic conditions or disorders.”[7] The broad dictionary definition of “medical condition” permitted the Court to justifiably conclude that lactation is a medical condition protected under the PDA.  Thus, any discrimination based on a woman’s need to express milk is a violation of the PDA.[8]

Upon returning to work, a new mother may face an employer that provides unreasonable medical accommodations.  Recently, the Eleventh Circuit in Hicks v. City of Tuscaloosa [9] dealt with the issue of whether breastfeeding is a medical condition protected under the PDA.[10] Hicks, a police officer for the city of Tuscaloosa, returned to work after giving birth and within two weeks she was demoted to a position that offered less pay, required her to work on days that she previously held off, and did not grant her the benefit of a vehicle.[11] After the demotion, Hicks requested a workplace accommodation that would relieve the bullet proof vest requirement thereby allowing her to express milk while on duty.[12] This accommodation was not uncommon, as other employees with similar work restrictions were granted the accommodation of working desk duty.[13] Unfortunately, Hicks was not granted an accommodation but was told that she had two choices: (1) not wear the bullet proof vest, or (2) wear a custom-made vest.[14] Hicks did not consider these options safe, especially the custom-made vest that was known to be ill-fitting and less protective.[15] She resigned immediately.[16] The Eleventh Circuit held that this lack of an accommodation constituted constructive discharge and a violation of Title VII.[17] Although an employer does not have to provide special accommodations to breastfeeding mothers, an employer must afford them the same accommodations that are offered to similarly situated employees.[18]

New moms are not expecting their employer to construct a nursing room; however, they are holding employers accountable for not acknowledging that lactation is a “related medical condition.”  It is not a choice; it is a gender-specific condition that must be protected from unlawful discrimination.  It appears the courts are moving in the right direction in protecting women’s right to not be discriminated against because they are lactating.  A woman should not have to choose between breastfeeding her newborn and employment.  The protection of the lactation is a step in the right direction.  As case law continues to develop, women across America are rooting for expanded rights for women as they balance a new baby and work.


[1] Nat’l Ctr. for Health Statistics, Ctrs. for Disease Control and Prevention, National Vital Statistics Report 1 (2017).

[2] According to the United States Census Bureau, about 63% of the female labor force gave birth in 2016. See 2016 American Community Survey 1-Year Estimates, U.S. Census Bureau, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_S1301&prodType=table (last visited Oct. 8, 2017).

[3] Pregnancy Complications, CDC (June 17, 2016), https://www.cdc.gov/reproductivehealth/maternalinfanthealth/pregcomplications.htm.

[4] 42 U.S.C. § 2000e.

[5] 717 F.3d 425 (5th Cir. 2013).

[6] Id. at 428.

[7] Id.

[8] Id. at 430.

[9] No. 16-13003, 2017 WL 3910426 (11th Cir. Sept. 7, 2017).

[10] Id. at *4.

[11] Id. at *1.

[12] Id. at *2.

[13] Id. at *2.

[14] Id. at *2.


[16] Id.

[17] Id. at *3-4.

[18] Id. at *5.

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