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Can Breastfeeding Mothers Sue for Pregnancy Discrimination? The 11th Circuit Says Yes.


Can Breastfeeding Mothers Sue for Pregnancy Discrimination? The 11th Circuit Says Yes.

Earlier this month the 11th Circuit Court of Appeals in Atlanta, Georgia made an important ruling in favor of new and breastfeeding mothers. The court affirmed a jury’s decision in the district court that the Tuscaloosa Police Department (TPD) discriminated against a new mother based on her breastfeeding. That makes the 11th Circuit the second appeals court in the United States to find that breastfeeding falls under the protections in the Pregnancy Discrimination Act of 1978.

Maternity Discrimination in Tuscaloosa

Sally Hicks was a successful police officer with the TPD. Prior to having her first child, she worked in the narcotics division. She handled late nights, drug informants, and a gruelling schedule, all with excellent reviews, and as Hicks later stated, she loved her job. However, the contention between her profession and pregnancy began far before Hicks had her baby.

Hicks was granted some accommodation during her pregnancy by the captain of her department. This wasn’t well received by certain other officers, including her direct supervisor. When Hicks took the 12 weeks of maternity leave afforded under the Family and Medical Leave Act (FMLA), it led to further grumblings from specific individuals in the TPD. Yet, Hicks wasn’t fired for being pregnant, and did return to her same position at the TPD.

What was different after Hick’s pregnancy leave was her captain. The new captain of the narcotics division immediately created a hostile work environment for Hicks, who continued to breastfeed after returning to work. She was written up on her first day back at work, called gender slurs behind her back, and within eight days demoted back to a patrol unit.

However, Hicks’s reasons for a pregnancy discrimination case were only starting. Back on patrol Hicks would need to wear a ballistics vest, which was impossible due to lactation. She received a note from her doctor explaining the dangers of a breastfeeding woman wearing the constricting vest, Hicks requested light-duty while breastfeeding, which wouldn’t require a vest.

Instead, her superior officer told her to go on patrol without a vest or while wearing an ineffective, specially fitted vest. The specially fitted vest had numerous holes, which would expose Hicks to significant danger on patrol. Instead, Hicks quit and filed a pregnancy discrimination lawsuit.

Proving Pregnancy Discrimination by the TPD

Historically, maternity discrimination in the workplace was difficult to prove and harder to remedy, even when a woman was specifically fired because of pregnancy. In fact, courts once explicitly held that discrimination due to pregnancy was not unconstitutional or actionable in federal court. Of course, the Pregnancy Discrimination Act changed that aspect of the law in 1978, and pregnancy discrimination cases have been filed for many different reasons in the interim years.

However, Hicks’s case wasn’t as straightforward as being fired for pregnancy. The Pregnancy Discrimination Act makes it illegal to discrimination on the basis of pregnancy, childbirth, and related medical conditions. As the discriminatory acts occurred while Hicks was lactating and breastfeeding, not pregnant or complications from childbirth, she had to convince a jury that breastfeeding and lactation were medical conditions related to pregnancy.

If this seems like a foregone conclusion, think again. Just in 2012 a federal judge in Texas determined that lactation did not fall in this category. Eventually, the 5th Circuit overruled that judge’s decision, and determined that lactation was a physical change and response to pregnancy and childbirth. The jury in Hicks’s case similarly agreed with this finding and awarded her a six figure sum as compensation for pregnancy discrimination.

Agreement by the 11th Circuit made it the second federal circuit to solidify that discrimination on the basis of breastfeeding and lactation was actionable.

Pregnancy Discrimination Lawsuits After 11th Circuit Decision

The 11th Circuit decision better delineates the circumstances and types of pregnancy discrimination in the United States. As the second circuit court to affirm a ruling the lactation and breastfeeding are related to pregnancy and childbirth, there is more argument for other courts to find the same. When the issue of lactation or breastfeeding arises in a separate circuit, this decision will not be controlling, but is persuasive.

Just as importantly, the 11th Circuit’s decision is now law in the states of Alabama, Florida, and Georgia. Many women experience pushback, discrimination, and difficulty from employers when it comes to breastfeeding and certain accommodations for lactation. Now, lower courts must look to this important decision by the 11th Circuit when determining questions of these physiological responses to pregnancy and childbirth in Pregnancy Discrimination Act cases.

Examples of pregnancy discrimination and maternity discrimination in the workplace are, unfortunately, all too common. However, the availability of legal remedies is improving, and hopefully decisions like the 11th Circuit’s will continue to provide women with options for recourse and justice. If you have experienced pregnancy discrimination in the workplace, call an  experienced employment discrimination attorney to discuss your situation and legal options.

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