Judge: Firing for lactation not sex discrimination

Associated Press

HOUSTON (AP) – A federal judge’s ruling against a Houston mother who says she was fired after asking for a place to pump breast milk has highlighted a question left unanswered by higher courts: Is firing a woman because she wants to pump at work sexual discrimination?

In his ruling, U.S. District Judge Lynn Hughes said it wouldn’t be illegal even if Donnicia Venters and the Equal Employment Opportunity Commission were correct in assuming that Houston Funding, a debt collection agency, fired her because she’d asked to pump breast milk at work. The judge reasoned that lactation was not pregnancy-related and, as a result, “firing someone because of lactation or breast-pumping is not sex discrimination.”

Several other district courts have issued similar statements, but no higher-level appeals court has ruled on the issue, leaving many new mothers in legal limbo, said Carrie Hoffman, a labor lawyer in Dallas. She said President Barack Obama’s health care law addresses breast feeding and requires employers to give new mothers a break to nurse, but it doesn’t specifically protect women from being fired if they ask to do so.

“The intent was to get nursing mothers back to work but allow them to continue to nurse because of the health benefits associated with nursing,” Hoffman said. “But even so, that law doesn’t have anything to do with terminating the employee … it just requires break time. There appears to be a hole.”

Either way, the rule _ which went into effect in the past year _ would not apply to Venters.

Her story began in December 2008, when she took maternity leave and gave birth to her now 3-year-old daughter, Shiloh. She kept in close contact with Houston Funding during her roughly 10-week leave, according to cellphone records obtained by the EEOC and written statements by her former supervisors, said Tim Bowne, a senior trial attorney with the EEOC in Houston who helped litigate the case.

At least twice during her leave, Venters told her direct supervisor, Robert Fleming, she wanted to pump milk while on her break at work and asked him to get permission from their boss, Vice President Harry Cagle.

“He was completely fine about it,” she said of Fleming. “I never got an answer back and I didn’t think anything of it.”

Venters, 30, had worked at the company for almost three years, earned a promotion and figured that at worst Cagle might feel uncomfortable and deny her request.

“I didn’t think I would get the boot for it,” Venters told The Associated Press. “It didn’t really make sense to me.”

In a signed affidavit provided to the judge, Fleming said that when he told Cagle that Venters wanted to bring a breast pump to work, Cagle responded with a strong “No. Maybe she needs to stay home longer.”

Bowne said Venters told the EEOC that when she told Cagle she wanted to use a breast pump in a back room during breaks at work, his “demeanor changed. He paused for a few seconds and said, `I’m sorry. We’ve laid you off.'”

The company issued a statement Thursday evening saying it welcomed the court’s ruling, denied discriminating against Venters and would comply with new laws protecting women’s rights to breast feed in the workplace.

In response to the lawsuit, Houston Funding had argued that Venters was terminated because she failed to keep in good contact with the company and didn’t return to work as scheduled. But Fleming said he had spoken to Venters at least weekly during her medical leave, which the EEOC argued was evidence that Houston Funding’s excuse for firing Venters _ “job abandonment” _ was simply a “pretext for unlawful discrimination.”

Hughes sided with the company in his ruling last week, but he also wrote: “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 Dec. 11, 2009. After that day, she was no longer pregnant and her pregnancy-related conditions ended. Firing someone because of lactation or breast-pumping is not sex discrimination,” the judge wrote.

But Hoffman and Bowne said the issue won’t be definitively determined unless an appeals court takes up the case. The EEOC has not yet decided whether to appeal Hughes’ ruling, Bowne said.

“It’s quite likely that we’ll seek an appeal, but that decision is made in headquarters,” Bowne said, noting that decision would probably be made in April.

Current law clearly protects pregnant women from being fired simply because they are having a child, and many of the arguments made regarding lactation have focused on it being a “pregnancy-related condition.” Hoffman believes, however, that attorneys seeking to get stronger protection for new mothers should instead focus on sexual discrimination.

“It’s certainly sex-based. Men can’t lactate,” Hoffman said.

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Plushnick-Masti can be followed on Twitter at
https://twitter.com//RamitMastiAP

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Information from: KHOU-TV,
http://www.khou.com

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