Judge Rules Firing Someone Because of Lactation Is Not Sex Discrimination

In dismissing a lawsuit filed in United States District Court in Houston, Texas by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee fired for requesting space to pumping breast milk at work, U.S. District Judge Lynn Hughes held that Title VII provisions barring pregnancy and childbirth related discrimination in the workplace do not cover lactating mothers.   Across the nation, plaintiff’s attorneys and advocates were stunned by Judge Hughes’ decision in favor of a company that allegedly fired Donnicia Venters for asking to pump breast milk at work.

In December 2008, Venters took leave from Houston Funding, a debt collection agency, to give birth to her daughter, Shiloh.  Though the company did not have a maternity leave policy, Venters remained in touch with management after the delivery and continued to pay her employer-sponsored insurance premium.  According to court records, an infection of her caesarean incision in January 2009 “complicat[ed] her recovery,” and she was unsure when she would be able to return to work.

Court records suggest that, on at least two occasions during the leave, Venters mentioned to her direct manager that she wanted to pump breast milk at work upon her return from maternity leave.  According to a signed affidavit, the manager broached the issue with Vice President Harry Cagle who replied, “No.  Maybe she needs to stay home longer.”  As soon as her doctor released her to return to work on February 16, 2009, Venters phoned the employer and left a message about the doctor’s approval.  The following day, she called again to follow-up with Vice President Cagle, and immediately after she asked to pump milk in a back office space, he informed her that the company had replaced her because managers believed she had abandoned her position.  Though Cagle claimed management decided to terminate her on February 10, 2009, the termination notice was dated February 16 – the day of the follow-up talk – and sent on February 20, 2009.

In the pithy, three-page opinion, Judge Hughes opined that Title VII does not extend protection to breast-feeding mothers because “lactation is not pregnancy, childbirth or a related condition,” an assertion in stark conflict with common held knowledge that lactation rarely occurs outside of pregnancy and childbirth.  In Judge Hughes’ view, Venters’ pregnancy-related conditions ended as soon as she gave birth; therefore, the company did not violate Title VII even if the termination for abandonment was a pretext to fire her for asking to pump milk at work.

Venters has vowed to appeal the decision, which will likely take center stage at a February 15, 2012, EEOC public forum on workplace pregnancy discrimination and caregiver issues.