A recent court of appeals decision serves as a good reminder that women are protected by the federal Pregnancy Discrimination Act (PDA) from discrimination or retaliation for requesting workplace accommodations for expressing breast milk. The PDA prohibits employers with 15 or more employees from discriminating against a woman because she is pregnant, might become pregnant, or has been pregnant. These protections cover pregnancy, childbirth, and related medical conditions. Several courts have concluded that lactation (or breastfeeding) is a medical condition related to pregnancy, and therefore covered by the non-discrimination requirements of the PDA.
The U.S. Eleventh Circuit Court of Appeals addressed this issue in a recent Alabama case. A police officer returning from maternity leave was demoted and reassigned eight days after her return. The new assignment required her to either wear a ballistic vest that could impact her ability to breastfeed (as certified by her doctor), or endanger herself by working without the ballistic vest. It also resulted in a pay cut and the loss of her vehicle and weekends off. The court found that the reassignment and failure to accommodate the officer’s breastfeeding were discriminatory in violation of the PDA, and also retaliatory in violation of the federal Family and Medical Leave Act (FMLA). The jury awarded the officer $374,000 (Hicks v. City of Tuscaloosa, Alabama, 11th Cir, Sept. 2017).
Tips: The PDA isn’t the only law that protects lactation rights. The federal Fair Labor Standards Act also requires employers to provide reasonable rest breaks for non-exempt employees to express breast milk. State laws in California and Oregon provide even greater protections. For more information, see Vigilant’s Model Policy, “Breaks for Nursing Mothers”, and our Legal Guide, “Pregnancy and Disability”. Contact your Vigilant employment attorney for help with compliance or learn more about our flat fee employment law advice.