WORKPLACE LAW LOWDOWN | Failure to Accommodate a Breastfeeding Mother is Sex Discrimination
The long-standing position of the federal courts has been that sex and pregnancy discrimination laws do not require employers to give “special accommodations” to breastfeeding mothers.
A recent Eleventh Circuit Court of Appeals case has “straddle[d] the line” between accommodation and discrimination by ruling that an employer which granted accommodations to other employees discriminated on the basis of sex/pregnancy by refusing to grant a similar accommodation to a breastfeeding employee.
In Hicks v. City of Tuscaloosa, Case No. 16-13003 (11th Cir. Sept. 7, 2017), a jury determined that the City had engaged in a variety of discriminatory and retaliatory actions against the plaintiff, Stephanie Hicks, following her return to work from a 12-week FMLA leave for childbirth. The City’s actions included: writing plaintiff up on her first day back from leave, even though she had “exceeded expectations” prior to her leave; comments made by the plaintiff’s supervisor about the amount of leave plaintiff had taken and about getting plaintiff out of that department; and reassigning and demoting the plaintiff to patrol duty just 8 days after plaintiff had returned from leave.
Following the reassignment, at her doctor’s suggestion, the plaintiff, a police officer, requested a desk job instead of patrol duty. The desk job would not require her to wear a vest. The vest was restrictive and, according to her doctor, could cause infections and lead to an inability to breastfeed. Plaintiff also sought assurances that she would be allowed to take breaks to breastfeed. Her request was denied. The Police Chief did not consider breastfeeding a condition that warranted alternative duty. Plaintiff was given the options of: (1) not wearing a vest on patrol, or (2) wearing a vest that could be “specially fitted” for her. The plaintiff considered both options unacceptable: “no vest” was too dangerous and the specially fitted vests left “gaping, dangerous holes” in the protection. The plaintiff resigned her employment that day. She then filed a lawsuit asserting, among other things, that she felt compelled to resign due to the City’s refusal to accommodate her request for a desk job – an accommodation that had been granted to other employees with temporary injuries.
The jury found that the City’s action in refusing the plaintiff the accommodation of alternative duty constituted a constructive discharge. The Eleventh Circuit affirmed the jury’s verdict. The Pregnancy Discrimination Act of 1978 amended Title VII to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” Breastfeeding is a related medical condition: “breastfeeding is a sufficiently gender-specific condition … [that] ‘clearly imposed upon women a burden that male employees need not – indeed, could not – suffer.’” In this case, denying an accommodation for a breastfeeding employee violated Title VII when it amounted to a constructive discharge.
This case demonstrates that “[t]he line between discrimination and accommodation is a fine one.” While employers are not required by Title VII to give special accommodations to breastfeeding mothers, an employer cannot refuse an accommodation afforded to other employees.
This case focused on the employee’s request for a desk job and did not discuss the employee’s need for breaks to express breast milk. Note: the Affordable Care Act’s requirement that employers provide reasonable break time and space for non-exempt employees to express breast milk at work does not apply to police and fire employees.