The Case of the Breastfeeding Narc: 11th Circuit Confirms Lactating Employee is Covered Under Pregnancy Discrimination ActDoes 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.

Factual Background

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.

Sad Dad Wants Paid Leave to Care for Newborn Lad; Employer’s Leave Policy Is Not So Rad; ACLU Gets MadCan an employer distinguish between moms and dads when granting paid parental leave for care for a newborn? Bank JP Morgan appears to believe so. Derek Rotondo requested parental leave when his wife was expecting their second child. Under JP Morgan’s policies, mothers are by default considered primary caregivers and are automatically entitled to 16 weeks of paid parental leave. Fathers, however, are only entitled to two weeks of paid leave, unless the father could prove that the mother was “medically incapable” of taking care of the child. Mr. Rotondo did not meet that criteria and was denied the 16 weeks of paid leave. In response, he and the ACLU filed a charge with the EEOC alleging that JP Morgan’s policy violated Title VII because it enforced gender stereotypes—women as caregivers and men as workers.

Keep in mind we are not talking about whether men can take unpaid leave to care for a newborn. That issue was decided long ago with the FMLA’s passage. If a man working for an FMLA-covered employer is FMLA-eligible and requests 12 weeks of unpaid leave when a newborn enters his life, the employer’s answer is almost always a definite yes. The issue in this matter is about the employer’s paid leave policy.

EEOC Guidance

The EEOC has issued specific guidance on employers providing paid pregnancy and post-pregnancy leave. They suggest that employers should divide this type of leave into two categories:

(1)  Pregnancy disability – leave related to any physical limitations imposed by pregnancy or childbirth

(2)  Bonding – leave for purposes of bonding with and/or providing care for a child

Obviously, the first category can be limited to women affected by those conditions. However, if an employer chooses to extend paid leave to new mothers beyond the period of recuperation from childbirth, it must provide that leave to similarly situated men and women on the same terms. The guidance goes on to give an example of how an employer can phrase the distinction between the types of leave in their policies.

Takeaways

The JP Morgan charge is still in the early stages so it will be interesting to see how this plays out. However, as norms for childcare have evolved into a more equal status between mothers and fathers, employers may be confronted with similar requests by working dads. While the EEOC’s suggested language for a policy is only guidance, not a requirement, it is helpful as a starting point for discussions about what benefits an employer may want to provide. Keep in mind that you cannot discriminate against employees based on their sex—even if your intent is to give new mothers an extra benefit.

gossiping coworkersIf you’re not careful, a casual reference to an employee’s FMLA leave might give rise to an FMLA interference claim. A recent Florida case, Holtrey v. Collier County Bd. of Commissioners, reminds us that you can get into trouble—and violate an employee’s rights—despite proper record keeping if an employee with access to those records discloses sensitive medical information about another employee’s FMLA leave.

Basic FMLA Rules

Generally, eligible employees are entitled to up to 12 weeks of FMLA leave in a 12- month period and they get to return to their position at the end of the leave. There’s also no question that FMLA regulations  require an employer to keep confidential an employee’s medical records and information related to an employee’s FMLA leave. In fact, you must maintain medical records separately from personnel records.

So What Happened in Florida?

Keep in mind that the facts as we know them are based almost entirely on the plaintiff’s version of events. With that caveat, Scott Holtrey applied for and received FMLA leave for a chronic and serious medical condition affecting his genito-urinary system. While he was out on leave, a manager apparently chatted with several of Holtrey’s coworkers about his medical condition. When Holtrey returned from leave, coworkers made jokes and obscene gestures about his medical condition in front of him. He complained and his employer (the Collier County Board of Commissioners) failed to remedy the situation, so he filed a lawsuit claiming the board violated the FMLA when his manager disclosed his medical condition and when his coworkers teased him about it. The board filed a motion to dismiss pointing out that Holtrey got all the leave he requested.

The court denied the board’s motion to dismiss, finding that Holtrey sufficiently pled an interference claim because he alleged that the board interfered with his FMLA rights by disclosing his confidential medical information resulting in a “work environment riddled with obscene gestures and jokes at his expense.” According to the court, the issue “is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right.” The court noted that district courts conflict on whether disclosure of medical information constitutes an FMLA interference claim, but went on to note that the regulations make clear that “confidentiality of medical information is a right provided and protected under the FMLA.”

Guarding Confidential Medical Information

The court hasn’t said that Holtrey wins his FMLA interference lawsuit based entirely on the supervisor’s violation of his confidentiality. It has, however, found that Holtrey’s lawsuit to test that theory can continue. How could this be prevented? Maybe Holtrey’s manager didn’t need to know what was wrong with Holtrey—just that he was approved for leave. The Holtrey case is a good reminder to make sure that employees (especially managers) are thoroughly (and frequently) trained about their FMLA obligations.

Rule of thumb: Don’t chat about an employee’s medical condition — ever.