Michelle D. Craig
Partner | Adams and Reese LLP
Question: Recently, one of my employees returned from leave after having a baby. She requested use of one of our empty rooms to pump milk during the work day. I am uncomfortable with even discussing this and I am not sure how I feel about having this go on at my establishment during the work day. Can I just say “no—do your pumping at home?” Can I terminate her if I catch her doing it? I know that sounds harsh, but I don’t want every female who has a baby thinking that she can do stuff like that at the workplace. I really want to say no to her request. By the way, I am a woman so I am not discriminating against her because she is a woman.
Terminating this employee because of this request will probably be considered a violation of the Pregnancy Discrimination Act.
Title VII makes it unlawful for an employer to discriminate against an employee because of the individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2(a)(1). In 1978, Congress amended Title VII to include the Pregnancy Discrimination Act (PDA). 42 U.S.C. § 2000e-(k). The PDA specifically provides that discrimination because of sex includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e (k).
In May 2013, the 5th Circuit ruled on a similar case under the PDA. The Equal Employment Opportunity Commission (EEOC) brought an action against a company because a returning new mother asked if she could use a back room at work to pump breast milk. The response was negative. After asking again, she was terminated. She filed an EEOC charge based on sex discrimination, and later, a lawsuit was filed on her behalf. The court concluded that lactation was a “related medical condition” of pregnancy for purposes of the PDA. An adverse employment action motivated by “lactating or expressing milk” could be considered sex discrimination.
Accordingly, you should never give an outright negative response to an employee making this request. Instead, carefully consider any requests for adjustments or accommodations and determine whether they are related to the pregnancy and thus may be protected. Next, engage in a dialogue with the employee about her needs. The reality is, in this case, her request to lactate in an empty room should not be met with negativity. As an employer you should get in the habit of refraining from inflicting your bias or beliefs on your employees when making employment-related decisions. Such a practice will help you make a sound employment decision.
The information contained in this column does not constitute legal advice or opinion and should not be viewed as a substitute for legal advice. The information provided is based on laws and regulations in effect at the time of creation and is subject to change. The sending of this newsletter is not a privileged communication and does not create a lawyer/client relationship. Michelle D. Craig is a Partner in the Labor and Employment Practice Group at Adams and Reese LLP. She can be reached at michelle.craig@arlaw.com; 504-585-0441; www.adamsandreese.com. Please send her your questions.