Tag Archive: Employment Law

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.

May 09

Transgender Employee Rights

By Natalie Russell.

Lesbian Gay Bisexual Transgender (“LGBT”) workers are seeing progress in the protection of transgender employee rights by the Equal Employment Opportunity Commission (“EEOC”). Title VII of the Civil Rights Act of 1964 protects employees against workplace discrimination “based on . . . sex.” Traditionally, however, the term “sex” was defined as one’s gender at birth. Any claims that were filed for sex-related acts of discrimination, other than those relating to one’s gender at birth, could not be adjudicated by the EEOC.

The term “sex” was expanded in the 1989 Price v. Waterhouse decision when the U.S. Supreme Court held that sex stereotyping was protected under Title VII. The law continued to evolve and, in 1998, rendering the majority opinion in Onacle v. Sundowner Offshore Services, Justice Scalia acknowledged that same-sex harassment is also discrimination under Title VII.

Still, it was not until the 2012 landmark decision, in Macy v. Dep’t of Justice, when the EEOC recognized that claims based on transgender discrimination are protected under Title VII and can be adjudicated according to 29 C.F.R. Part 1614 of the EEO complaint process. Under Macy, a transgender individual who experiences sex discrimination in the workplace can establish a case under three theories: sex, gender stereotyping, and gender identity. Sex discrimination based on gender identity exists when an agency denies employment because the applicant is transgender, terminates employment based on transgender status or repeatedly uses the incorrect gender pronoun when interacting with or talking about a transgender employee.

On April 9, 2015, the EEOC v. Lakeland Eye Clinic, P.A. $150,000 settlement marked a “historic” moment for the EEOC. It was one of the first times the EEOC filed a case for sex discrimination against a transgender employee. The EEOC has made LGBT coverage under Title VII a priority through its Strategic Enforcement Plan (“SEP”). In 2015 alone, the EEOC held over seven hundred events where LGBT rights were discussed. With its directed attention on LGBT coverage, the EEOC has resolved one hundred eighty-four cases and settled twelve of two hundred seventy-one transgender/gender-identity claims it received in 2015.

The EEOC continues its efforts to educate, prevent, and correct LGBT rights and has committed to protecting sex-discrimination rights of transgender individuals.

Apr 04


By Courtney Sokol.

On March 22, in Tyson Foods, Inc. v. Bouaphakeo, the U.S. Supreme Court, in a 6-2 decision, upheld an Eighth Circuit ruling that certified a group of workers at Tyson Foods as a class under both a Rule 23(B)(3) class action and a Fair Labor Standards Act of 1938 (FLSA) collective action. Tyson Foods did not pay its employees for time spent “donning and doffing” necessary protective gear. The employees argued that Tyson Foods violated FLSA and the Iowa Wage Payment Collection Law by not paying appropriate compensation for time spent putting on and taking off the protective clothing at the beginning and end of the day and lunch break. While the central issues addressed by the Court address certification of a class with non-identical members, of which many were uninjured, the decision offers broader implications for the strength of worker protections.

Delivering the opinion of the Court, Justice Kennedy noted the grueling and dangerous conditions that Tyson’s workers experienced along with the necessity of such gear. Until 1998, the workers were paid under a system called “gang-time,” where employees were compensated for time spent only at their workstations. This time did not include when they were required to put on or take off protective gear. In response to a federal-court injunction, Tyson in 1998, began to pay all employees for an additional 4-minute period called “K-code time.” The four-minute period is the time estimated by Tyson for how long employees needed to put on their gear. However, in 2007, Tyson stopped K-code time, and instead only paid some employees beyond their gang-time wages for time spent dressing and undressing.

In response to this change, the employees filed suit in the United States District Court for the Northern District of Iowa, alleging FLSA violations. FLSA requires that a covered employee who works more than 40 hours a week receive excess time worked “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. §207(a). Additionally, FLSA requires employers to pay employees for activities which are integral and indispensable to their regular work, even if the work does not occur at the work station.

Here, the employees argued that putting on and taking off their protective gear were integral and indispensable to their hazardous work, and therefore, compensation for such is required by FLSA. The employees raised the same claim under the Iowa Wage Payment Collection Law, which includes FLSA mandated overtime.

At trial, the employees had to prove that they worked 40 hours or more per week in order to qualify for FLSA overtime. Respondents proposed to bifurcate proceedings by requesting that the District Court address first, whether the time spent preparing their protective gear was compensable under FLSA and how long the activity took on average; and second, a statistical methodology be used to determine how much each employee would recover.

Tyson Foods did not move for a hearing regarding either of the above issues raised by the employees, but instead challenged the class certification under FRCP Rule 23(B)(3) and FLSA collective action. Tyson Foods argued that the varying amounts of time it took employees to don and doff different protective equipment made the lawsuit too speculative for class-wide recovery.

The Court turned to its decision in Anderson v. Mt. Clemens to explain that when employers violate their statutory duty to keep proper records, which prevents employees from establishing how much time they spent doing uncompensated work, the “remedial nature of [FLSA] and the great public policy which it embodies . . . militate against making” the burden of proving uncompensated work “an impossible hurdle for employee[s].”

The court held that the class members were joined under a common question, which satisfies the requirements for a class-action suit irrespective of differences among the members. Although the case was decided on procedural grounds, Kennedy’s majority opinion put great emphasis on the danger of the Respondent’s profession paired with the necessity of the protective gear. In evoking the remedial nature of FLSA, the Court is seemingly united behind pro-labor sentiment.