A few weeks ago, the 11th Circuit of the United States Court of Appeals upheld a favorable jury verdict on behalf of a former Alabama police officer under the Pregnancy Discrimination Act (“PDA”) and the Family and Medical Leave Act (FMLA). The officer was working as an investigator on the narcotics task force when she became pregnant. Her supervisor told her on more than one occasion she should take only six weeks of FMLA leave however, the officer took twelve weeks of FMLA leave. Prior to taking leave, the officer received a performance review which “exceeded expectations.” However, on her first day back from leave she was written up. Eight days after returning from leave the officer was reassigned which resulted in losing her vehicle and weekends off as well as receiving a pay cut and different job duties. She also had to start wearing a ballistic vest all day as a patrol officer. She previously was not required to wear one in the narcotics task force.
Before beginning the patrol division, the officer took leave after being diagnosed with postpartum depression. The officer’s doctor wrote a letter to the Chief recommending she be considered for alternative duties because the ballistic vest she was now required to wear on patrol duty was restrictive and could cause breast infections that could lead to an inability to breastfeed. When she returned from leave for the postpartum depression she met with her Chief again and requested a desk job where she would not be required to wear a vest and assurances that she would be allowed to take breaks to pump. The Chief noted breaks would be given but did not consider breastfeeding a condition that warranted alternative duty. The Chief also told her that her only options for accommodations were not wearing a vest (which the officer deemed too dangerous) or wearing a vest that could be specially fitted for her (which left gaping dangerous holes). The officer resigned that day.
The jury considered four claims but only found for the officer on three of them. The jury found that the reassignment was discriminatory, violating the PDA and that the reassignment was retaliatory, violating the FMLA. The jury also found the City’s failure to accommodate the officer’s breastfeeding requests constituted discriminatory constructive discharge, in violation of the PDA.
As to the breastfeeding claim, the jury found that the options offered by the Chief, of patrolling without a vest or with an ineffective larger vest, made her work conditions so intolerable that a reasonable person would be forced to resign. When the employee resigns in the face of such circumstances, Title VII treats the resignation as an actual discharge.
The Court noted that the PDA amended Title VII to add that discrimination because of sex or on the basis of sex includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C. §2000e(k). The Eleventh Circuit agreed with the Fifth Circuit Court of Appeals which has held that lactation is a related medical condition to pregnancy and thus termination based on a woman’s need to breastfeed violates the PDA.
The Court reasoned that Congress included pregnancy and childbirth and explicitly used the words “not limited to,” therefore it is a common-sense conclusion that breastfeeding is a sufficiently similar gender-specific condition covered by the broad catchall phrase included in the PDA. The Court further noted that reading the language of the PDA to cover breastfeeding is consistent with the purpose of the PDA. The Court held that the PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding- an important pregnancy related physiological process.
The Court cautioned that the line between discrimination and accommodation is a fine one and taking adverse actions based on a woman’s breastfeeding is prohibited by the PDA but the Court did not wish to disrupt precedent that employers are not required to give special accommodations to breastfeeding mothers.
The Court noted this case straddled the line as the City may not have been required to provide the officer with special accommodations for breastfeeding, however the jury found that the action in refusing an accommodation afforded to other employees compelled the officer to resign which constituted a constructive discharge or adverse action. The officer had shown that other employees with temporary injuries were given alternative duty and she had requested to be granted the same alternative duty rather than a special accommodation. The officer was asking to be treated the same as other persons not so affected but similar in their ability or inability to work as required by the PDA. The jury found that a reasonable person in the officer’s position would have felt compelled to resign. The Eleventh Circuit affirmed, holding the denial of accommodations for a breastfeeding employee violated the PDA when it amounted to a constructive discharge. See the full case here.
The take away in light of the holding that the PDA bars bias against breastfeeding employees, is that employers must take special caution when situations straddle the line between discrimination and accommodation. Some California cities have gone above and beyond to regulate accommodations for breastfeeding employees. See our blog on San Francisco’s Lactation in the Workplace Ordinance effective January 1, 2018.