Monday, February 13, 2012

Let’s try not to over-react to the breastfeeding discrimination case


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 lawsuit:

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 sex discrimination.

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 pejoratives).

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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