I wrote about a really stupid case out of Texas where a federal court said that "lactation is not pregnancy, childbirth, or a related medical condition," and thus decided that "firing someone because of lactation or breast-pumping is not sex discrimination." I was irked, to say the least. Lactation not related to pregnancy and childbirth? Really? Well, the 5th Circuit Court of Appeals which, to its credit, refrained from saying, "Well, duh," has unanimously ruled that lactation is, indeed, related to pregnancy and is therefore covered by Title VII [an enhanced version of this opinion is available to lexis.com subscribers]. EEOC reports this about the decision: "The Fifth Circuit noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy. Accordingly, under Title VII and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason. The case was remanded back to the lower court for a trial on the merits." Personally, I think the 5th Circuit should be applauded, not only for its common sense, but for the fact that it did not openly mock the lower court's ruling. I wouldn't have had that much self-control. I should also point out that almost all employers are required to provide nursing mothers with break time to pump breast milk, along with a private space that isn't the restroom to do so. The Fair Labor Standards Act requires this, so employers who fire moms for lactating may also run afoul of this law, even if they aren't large enough to be covered by Title VII. I rarely get to say this, so: Hooray for common sense in the courts!
See more employment law posts on Donna Ballman's blog, Screw You Guys, I'm Going Home.
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