Texas Court Rules Against EEOC – “Lactation Discrimination” Is Not Unlawful Sex Discrimination But …

A Cautionary Reminder for Employers

A Texas Federal Court recently ruled that terminating an employee because she wanted to pump breast milk at work is not sex discrimination. The Equal Employment Opportunity Commission sued on behalf of an individual employee who had mentioned her need to pump breast milk at work and soon thereafter was fired for job abandonment. The employer claimed that the employee had not kept the employer informed during her leave or about her desire to return to work. The employer explained that its decision to terminate the employee for job abandonment already had been made before the employee’s request.

The Washington Post reported on this ruling last week.

The Court ruled that this set of disputed facts did not matter – the Court did not have to resolve the dispute because the EEOC was claiming sex discrimination. But, the Court ruled, “Firing someone for lactation or breast-pumping is not sex discrimination” as a matter of law.

Take Note:

  • This was not an individual lawsuit. Rather, the EEOC filed suit. The EEOC viewed the situation differently than the Court and took up the cause for this individual employee. The EEOC alleged that termination for lactation or breast-pumping was sex discrimination. Given its resources and its apparent view, look for the EEOC to appeal.
  • If this had happened today, would the result have been different? Likely, and the agency who would have sued would likely have been different. Here, the EEOC sued, but under the PPACA, an amendment was made to the Fair Labor Standards Act allowing female employees break time for breast-pumping. That law is enforced by the Department of Labor.
  • A reminder for employers: Under the new PPACA, female employees are entitled to “reasonable break time” to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.” Employers are required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” See the Department of Labor’s Factsheet for this requirement.
  • This same rule applies to Tennessee employers. According to TCA 50-1-305, an employer must provide a “reasonable unpaid break time” to an employee who needs to express breast milk. Such break time can, if possible, run concurrently with any break time already provided.
  • While a Tennessee employer is not required to provide such break if it would “unduly disrupt the operations” (not defined), there is no such exception under the federal act, except for employers with less than 50 employees.