Last month, I wrote that employers denying lactation rights
to employees was not problem that needed remedial legislation. Wouldn't you
know it, news broke last week of a federal judge in Houston who
dismissed a sex discrimination case-EEOC v. Houston Funding [pdf]-in which the employee
alleged that she was fired because she asked to pump breast milk at work.
Here's the court's entire analysis dismissing the
The commission says that the company fired her because
she wanted to pump breast milk. Discrimination because of pregnancy, childbirth,
or a related medical condition is illegal....
Even if the company's claim that she was fired for
abandonment is meant to hide the real reason - she wanted to pump breast milk -
lactation is not pregnancy, childbirth, or a related medical condition.
She gave birth on December 11, 2008. After that day, she
was no longer pregnant, and her pregnancy-related conditions had ended. Firing
someone because of lactation or breast-pumping is not sex discrimination.
Before I put on my employer-advocate hat, let me go on
record and say that the last I checked, women are the only gender that can
naturally produce milk, and therefore denying a woman the right to lactate is
This decision has people angry. As of this morning, the
case's online docket reflects that 12 private non-parties have emailed the
judge calling her ruling "shameful" and "absurd" (among other similar
Before people over-react and scream from the rooftops for
remedial legislation to clarify that lactation discrimination equates to sex
discrimination, one case does not make a rule. In fact, it is much more likely
that one case is merely an aberration. I stand by my conviction that 1) Title
VII's prohibitions against sex and pregnancy discrimination adequately cover
the rights of working moms to lactate; and 2) we do not need any additional
legislation (on top of the Patient Protection and Affordable Care Act) to further to
protect this right (EEOC v. Houston Funding notwithstanding).
For additional analysis of this case, I suggest checking
out the thoughts of some of my fellow bloggers from last week:
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