Breastfeeding Is Covered by the Pregnancy Discrimination Act
The U.S. Court of Appeals for the Eleventh Circuit held that breastfeeding mothers are protected by the Pregnancy Discrimination Act (PDA).
Facts of the Case: In Hicks v. City of Tuscaloosa, Alabama, a police officer returning from maternity leave was assigned to patrol duty that required her to wear a ballistic vest. She requested an accommodation of alternative desk duty, because her doctor stated that the vest was restrictive and could cause infections that would limit her ability to breastfeed. She was denied the alternative duty, which was available to employees with other medical conditions, and told that she could either not wear a vest or wear a “specially fitted” vest. The “specially fitted” vest, however, had large gaps. The officer felt that these options were too dangerous and she had no choice but to resign. She sued the police department, and a jury found in her favor. The police department then appealed to the Eleventh Circuit.
The Court’s Ruling: Following the lead of the Fifth Circuit, the Eleventh Circuit observed that the PDA expressly states that it covers discrimination “because of” or “on the basis of sex” and is “not limited to [discrimination] because of or on the basis of pregnancy, childbirth, or related medical conditions.” The Eleventh Circuit therefore arrived at the “common-sense conclusion” that “breastfeeding is a sufficiently similar gender-specific condition covered by the broad catchall phrase included in the PDA,” as only women can breastfeed. Citing to the Congressional record, the Eleventh Circuit stated that the PDA was intended to clarify that Title VII’s protections extend “to include the[] physiological occurrences peculiar to women” as part of the childbearing process, and that such physiological occurrences includes breastfeeding.
The Eleventh Circuit observed, however, that, “Taking adverse actions based on woman’s breastfeeding is prohibited by the PDA but employers are not required to give special accommodations [under the PDA or Title VII] to breastfeeding mothers.” On the other hand, if an employer refuses to provide accommodations that are offered to other employees, that could constitute discrimination under the PDA. The Eleventh Circuit found that the police department’s unwillingness to provide accommodations to the breastfeeding employee resulted in her constructive discharge (i.e. forced resignation) in violation of the PDA.
Lessons Learned: Employers should keep in mind that the PDA may be interpreted to encompass more than the condition of pregnancy itself, and, according to several federal appellate courts, does include the post-pregnancy condition of breastfeeding. Thus, breastfeeding employees should be treated in the same manner – and provided the same types of accommodations – available to other employees with other types of medical conditions. And employers should also remember that, although the PDA and Title VII do not require employers to provide breastfeeding accommodations per se, the Fair Labor Standards Act does require employers to provide reasonable break times and a private location to non-exempt employees needing to express breast milk.
