Congress didn't explicitly reference lactation when it passed the Pregnancy Discrimination Act in 1978. It merely said that employers can't fire or punish women because of "pregnancy, childbirth, or related medical conditions," which would seem to encompass the postpartum activation of the mammary glands.
U.S. District Judge Lynn D. Hughes (who is, for the record, a dude), didn't see it that way. Last year, he issued a ruling in the case of Donnicia Venter who, with the backing of the Equal Employment Opportunity Commission, claims she was fired after twice requesting to pump breast milk at work.
"Firing someone because of lactation or breast-pumping is not sex discrimination," Hughes wrote, granting employer Houston Funding's motion for summary judgment. That's because, according to Hughes, lactation is not a medical condition of pregnancy.
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The Fifth Circuit Court of Appeals in New Orleans is scratching its head at that one. A three-judge panel recently overturned Hughes' ruling after turning to the authoritative legal text known as the dictionary (Collins English Dictionary -- Complete and Unabridged, 2003 edition) and concluding, "Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth."
There's also some precedent for a broad interpretation of the "related medical conditions" clause of the Pregnancy Discrimination Act. The court cites one example in which a company was found to have violated the law for requiring new mothers "to have sustained a normal menstrual cycle before they can return to work."
Venters' case is a strong one, the Fifth Circuit's ruling suggests. She'd worked for Houston Funding for two-and-a-half years when she took maternity leave in December 2008. It was a difficult pregnancy, a C-section, and her doctor didn't clear her for two months. When she called Houston Funding partner Harry Cagle on February 17 to tell him she was ready to get back to work, he said her position had been filled.
The company's stated reason for firing Venters was job abandonment. It said it made the decision on February 13 after failing to hear from her in two months.
The appeals court points out that there are some inconsistencies in Houston Funding's account. There was the termination letter, which was ostensibly written on and dated February 16 but wasn't mailed until February 20, three days after Venters had spoken to Cagle. Then there was the fact that Venters' cell phone records showed she had spent 115 minutes on the phone with her employer in the month preceding her termination.
In one of those conversations, she'd asked her supervisor if she'd be able to use her breast pump when she returned to work. When the supervisor asked Cagle, he "responded with a strong 'NO. Maybe she needs to stay home longer.'" It was when she broached the subject a second time that Cagle paused before telling her she was fired.
The Fifth Circuit's decision only addresses Hughes' summary judgment ruling. The case now goes back to district court, where the court will weight the facts to determine if Venters was, in fact, discriminated against for wanting to breastfeed. Or maybe Houston Funding will just decide to cut its losses at this point and agree to a settlement.
