Does an employee’s protection under the Pregnancy Discrimination Act (PDA) stop when the employee ceases to be pregnant? The 11th Circuit Court of Appeals was confronted with this question in Stephanie Hicks v. City of Tuscaloosa, in which Ms. Hicks, a police officer who returned from maternity leave and unsuccessfully sought some accommodation related to breastfeeding. The police department said the requested accommodation was not required and she ultimately left her job, alleging she had been constructively discharged. The 11th Circuit stated that a “plain reading” of the PDA showed that breastfeeding is covered and affirmed the jury verdict in Hicks’ favor.
Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. After she became pregnant, her supervisor allowed her to work on pharmaceutical fraud cases so she could be off on nights and weekends. Before she left for her FMLA pregnancy leave, Hicks received exceptional performance reviews. However, on her first day back at work after her leave, she was written up. She submitted that some of her superior officers negatively commented on the length of her FMLA leave. The City claimed that Hicks was not willing to meet the demands of a narcotics officer and subsequently transferred her out of that unit and into a patrol unit. The City wrote a letter stating the reasons for her demotion and included an incident where officers came to Hicks’s home to get her police car and she did not come out because she was breastfeeding.
One of the big differences between a narcotics officer and a patrol officer is that a patrol officer must wear a ballistic protective vest all day. Hicks’s doctor wrote a letter to the police chief asking that she be considered for alternative duties because the restrictive ballistic vest could cause breast infections that could lead to problems with breastfeeding. Hicks asked for a desk job so that she would not be required to wear a vest. The Police Department instead only offered her two options: 1) don’t wear a vest; or 2) wear a “specially fitted” vest that left gaping holes. For safety reasons, Hicks did not choose either option and resigned. She sued the City and a jury found in her favor on constructive discharge, pregnancy discrimination, and FMLA interference, awarding her $374,000. The City appealed, arguing that it reassigned Hicks because of her poor performance rather than discrimination.
The Eleventh Circuit’s Take
The 11th Circuit found that Hicks was both discriminated against on the basis of her pregnancy and retaliated against for taking FMLA leave. Under the PDA, an employer may not discriminate against an employee on the basis of pregnancy, childbirth or “related medical conditions.” The 11th Circuit held that lactation is a related medical condition to pregnancy and therefore, a termination based on a woman’s need to breastfeed violates the PDA. The court went on to make the somewhat obvious statement: “Breastfeeding is a gender-specific condition because it clearly imposes upon women a burden that male employees need not—indeed, could not—suffer.”
However, the court noted, there is an abundance of case law stating that Title VII and the PDA do not mandate that employers have to provide “special” accommodations to breastfeeding workers. The opinion recognizes that Hicks had a unique case. While the City may not have been required to provide Hicks with special accommodation for breastfeeding, the City’s action in refusing an accommodation offered to other employees compelled her to resign and supported the jury’s verdict. The court went on to cite Young v. United Parcel Service a case that recognized a Title VII claim for a pregnant woman where her employer failed to accommodate her in a lifting restriction, but accommodated other similar non-pregnant employees on worker’s comp. Given these facts, the court upheld the jury verdict.
What Did We Learn?
This decision clearly shows that a breastfeeding employee is still protected under the PDA and employers should take note. While it is not an absolute protection from any supported non-discriminatory adverse employment action, employers should be careful about loose comments about the employee and certainly should engage in an interactive process if approached about a reasonable accommodation. While the 11th Circuit made some blanket statements that breastfeeding employees don’t have to be treated as special, they surely were not ignoring an employer’s obligation under the FLSA that mandates employers to provide reasonable break time for employees to express breast milk for a nursing child for up to one year after the child’s birth. The employer must also provide the lactating employee a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.