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The 2010 federal Patient Protection and Affordable Care Act amended the Fair Labor Standards Act (“FLSA”), and mandates that employers of 50 or more to provide an unpaid break as well as a private area to express or pump the milk. It also prevents discrimination or harassment based on a woman’s need to express or pump breast milk. One would think that type of express prohibition would be included in general sexual harassment and discrimination provisions and thus, not necessary.

Well, let’s look back to 2009 to the gender discrimination case of Donnica Venters, who worked as an account representative/collector for Houston Funding Corporation. After giving birth, Venters asked her supervisor if it would be a problem for her to express breast milk at work. According to the supervisor’s testimony, he ran the request up the chain of command, and was given a “a strong ‘NO. Maybe she needs to stay home longer.” When Venters pressed the issue, she alleged that she was fired.

After a gender discrimination law suit alleging a violation of Title VII of the Civil Rights Act of 1964, the employer defended the case by arguing that there was no such thing as “breast pump discrimination.” Sounds stupid, right? Only women have to express milk, so discrimination against individuals pumping breast milk for their newborns is clearly and unquestionably gender discrimination, right? Well … the trial court agreed with the employer, holding: “lactation is not pregnancy, childbirth or a related medical condition.” The trial court then limited pregnancy related medical conditions to “include cramping, dizziness, and nausea while pregnant.” (Emphasis Added). To that end, the trial court held that once the doctor cut the umbilical cord, “she was no longer pregnant and her pregnancy-related conditions ended.” There was no further explanation of why this still would not be considered gender discrimination separate from and consideration of the connection to pregnancy. Based on this reasoning, the trial court judge dismissed the case as a matter of law.

In reversing the dismissal of the gender discrimination claim, the Fifth Circuit Court of Appeals recognized that it is an undisputable biological fact that lactation is a physiological condition distinct to women who have been pregnant and that men could never be terminated for such a reason. To that end, the Fifth Circuit held that firing a woman because she is lactating or expressing milk is unlawful sex discrimination under Title VII and the Pregnancy Discrimination Act. Now, Venters gets to have a trial on the merits in front of a jury.

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So what are the takeaways? First, it is plainly unlawful to discrimination against women for any characteristic or condition that is uniquely female in nature. Second, sometimes trial courts get it wrong.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.

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