Category Archives: Pregnancy Discrimination

Newsflash to Judge: Lactation is Related to Pregnancy Discrimination

I reported a little over a year ago about a discrimination case out of Texas. A fired employee sued for wrongful termination based on pregnancy discrimination, claiming that she was fired due to her request to use the bathroom to breast-pump.

The judge on the case was Lynn Hughes. Judge Hughes was apparently willing to begrudgingly admit that taking adverse job action against a woman because of her pregnancy could amount to illegal discrimination, but that was as far as he was willing to go. In an infamous decision, Judge Lynn Hughes held: “Lactation is not pregnancy, childbirth, or a related medical condition,” adding that after plaintiff gave birth, “she was no longer pregnant and her pregnancy-related conditions ended.” Based on that tortured logic, Judge Hughes held that the woman had no viable claim under Title VII’s prohibition (found in the “Pregnancy Discrimination Act,” or PDA) against discrimination based upon pregnancy, childbirth or a related medical condition.

To that, I responded: “The ruling is, of course, utter nonsense. Lactation occurs because of childbirth, and if a mother cannot pump or nurse, she is at risk of mastitis.” I predicted the case would be overturned on appeal, and I was right. Continue reading

Judge Upholds Termination Because “Lactation is not Pregnancy”

A judge in Houston has ruled in favor of an employer who allegedly fired a woman who wanted to use the bathroom to breast-pump.

Case facts are never black and white, and there are always complicating factors. Here, there was apparently some issue as to whether the employee abandoned her job, but the ruling of the judge is still hard to fathom.

The EEOC filed a complaint on behalf of Donnicia Venters against debt collection agency Houston Funding. Venters alleged that the company violated Title VII of the Civil Rights Act. Since only women can currently get pregnant, Title VII makes it illegal to discriminate “because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth” since by definition those issues would only arise as to women.

However, Title VII doesn’t say anything about lactation, so Judge Lynn Hughes found that the lawsuit was not recognized under Title VII and dismissed the lawsuit. Judge Hughes ruled that “firing someone because of lactation or breast-pumping is not sex discrimination.”

The ruling is, of course, utter nonsense. Lactation occurs because of childbirth, and if a mother cannot pump or nurse, she is at risk of mastitis.

Thankfully, California already has laws in place to protect a woman’s right to breastfeed and/or pump.

For a more detailed discussion of the case, go here, where you can also listen to a recording of what sounds like the employer talking to Venters, explaining how she has no protections (which, if you believe the judge, turned out to be correct), and how generous they are being by showing that she resigned her job (which, of course, denies her unemployment).

A Glimpse of the Future — Employees Publicly Airing Employment Grievances

Pregnancy Discrimination” — one of my firm’s practice areas — popped up in my Google Alerts, and the link took me the the YouTube video below. The video is of a visibly pregnant woman, complaining about how she suffered job discrimination at work due to her pregnancy.  People using YouTube videos to vent is nothing new, relatively speaking, but I found this video interesting for a couple of reasons.

First was the fact that it came up so readily in a search. A Google search for “pregnancy discrimination” yields 1,520,000 hits. The video was posted on January 9, 2012, and five days later I was seeing it in my Google Alerts. Thus, employers need to know that even a modest effort as in the case of this video could quickly put a business in a negative light.

The second point of note is how persuasive it is because of the calm manner it was presented.  The woman, who identifies herself only as “Angel”, is not screaming or making outrageous claims; she just sets forth the facts like she is making a closing argument at trial.

In this case, the employer will probably not receive any backlash.  The audio is pretty poor (Angel, the most important part of a video is the AUDIO!), it has fewer than 100 hits at the time I am writing this, and I don’t believe she ever identifies the employer, only her union.  Nonetheless, the video offers a valuable lesson.

An employer always ran the risk that a termination would result in a lawsuit, but could minimize the chances of a successful lawsuit by making certain all laws were followed AND that the termination did not have the appearance of impropriety. That second element is now especially important, because even if the employer can prevail in civil court, it might still be found guilty in the court of public opinion, with a concomitant impact on the bottom line.