Thursday, March 15, 2012

Pregnancy and Pregnancy-Related Conditions Continue to Engage the Attention of the Courts, Regulators, Employers, and Employees

            There has been an extraordinary amount of activity of late regarding pregnancy and pregnancy-related issues, and this post will refer to but a few.  

I.                 Pregnancy Discrimination

            On February 15, 2012, the EEOC held a hearing where speakers discussed unlawful discrimination against pregnant workers and workers with caregiving responsibilities.  The testimony can be found at  At the hearing, written testimony was received from both Ms. Peggy Mastroianni, Legal Counsel with the EEOC, and Ms. Melvina Ford, Senior Policy Advisor in the Wage and Hour Division of the Department of Labor.  Ms. Ford in particular addressed the issue of nursing mothers, noting that the Affordable Care Act, P.L. 111-148 § 4207 amended section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207(r) to require employers to provide nursing mothers with break time and private space in which to express breast milk.  Furthermore, in December of 2010 the Wage and Hour Division published a Request for Information at 75 Fed. Reg. 80073 (Dec. 21, 2010) seeking comments to certain questions on the Department’s preliminary interpretations of the law.  See also 29 U.S.C. § 207(r)(3) (undue hardship exemption from the FLSA); 75 Fed. Reg. 80075, 80076, 80078 (regulations relating to time, space, and enforcement of the requirements).  A follow-up blog will appear in this space once the full transcript of the hearing becomes available.  

            Professor Jeannette Cox has posted her forthcoming Boston College Law Review article entitled Pregnancy as “Disability” and the Amended Americans with Disabilities Act (online) in which she argues that even though pregnancy, while more often than not a healthy biological state, can be viewed as a workplace “disability.”  Based on that premise, Professor Cox argues that the duty to accommodate may extend to pregnancy.  

            In Been v. New Mexico Dep’t of Information Tech., No. 6:09-cv-00726, 2011 U.S. Dist. LEXIS 114982 (D.N.M. Sept. 30, 2011), a state employee who was fired while absent to deal with pregnancy complications established disputed issues of material fact on gender discrimination and FMLA claims.  The court allowed plaintiff’s claim to proceed despite the fact that she had failed to identify any similarly situated, non-pregnant, individuals who were treated more favorably, holding that such “comparison evidence” is not necessary to establish a prima facie case.  Following the Tenth Circuit’s opinion in Dodd v. Riverside Health Sys., Inc., 76 F.3d 392 (10th Cir. 1996), the court found that to make out a prima facie case of discrimination “a plaintiff need only show that her position remained open and was ultimately filled by a non-pregnant employee.” 

II.              Breastfeeding or Expressing/Pumping Breast Milk 

           In EEOC v. Houston Funding II, Ltd., CA H-11-2442, 2012 U.S. Dist. LEXIS 13644 (S.D. Tex. Feb. 2, 2012) (as amended Feb. 9, 2012), a case that has occasioned extensive commentary (see here, here, and here for a small sampling), Judge Lynn N. Hughes held that “[f]iring someone because of lactation or breast-pumping is not sex discrimination.”  (footnote omitted).  Judge Hughes relies on Puente v. Ridge, No. M-04-267, 2005 U.S. Dist. LEXIS 46624, at *11-12 (S.D. Tex. July 6, 2005) (on the facts before it, breast feeding did not qualify for protection under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999) (prohibition on breast pumping did not show that female employee was treated differently than non-pregnant men who were similarly situated); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *29-30 (D. Or. Apr. 9, 1999) (to the extent that plaintiff based her claims on employer’s prohibition on breast pumping, she failed to state a claim); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990) (so long as employees are treated the same under benefits plan, no disparate impact claim despite exclusion of coverage for uniquely female condition of pregnancy).

In Puente, the federal district court for the Southern District of Texas reviewed several opinions from courts which have addressed this issue and concluded that:
 Those few courts which have addressed the issue have generally held that breast-feeding is not a condition within the scope of the PDA. See Fejes v. Gilpin Ventures, 960 F. Supp. 1487 (D. Colo. 1997)(Based on the language of the PDA, its legislative history, and decisions from other courts interpreting the Act, the district court held that breast-feeding is not a condition within the scope of the PDA; breast-feeding is not a medical condition related to pregnancy or childbirth within the meaning of the PDA); Vachon v. R.M. Davis, Inc., 2004 U.S. Dist. LEXIS 6339 (D. Me., 2004). While these opinions are not controlling on this Court, the Court will follow the holdings of these cases. As a result, Plaintiff's decision to breast feed in the present case does not afford her protection under the PDA [and as a result neither under Title VII.] See e.g. Molero v. Port Cargo Enters., LLC, 2005 U.S. Dist. LEXIS 5519, *9 (E.D. La. 2005)(Generally in order to support a hostile work environment sexual harassment claim, an employee is required to show that (1) she belongs to a protected group; (2) she was the subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of affected a term, condition, or privilege of employee; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.). As a consequence, even viewing Plaintiff's allegations in a light most favorable to her, Plaintiff's claims of gender discrimination, hostile work environment, and disparate treatment fail to state a claim upon which relief can be granted. Accordingly, the Court orders that Plaintiff's claims of gender discrimination, hostile work environment and disparate treatment be DISMISSED.

III.            Protection for Pre-Eligibility Activity Under the FMLA

As we have previously noted, not all courts have taken this path in determining the pregnancy-related protections afforded to women.  In Pereda v. Brookdale Senior Living Cmtys., Inc., No. 10-14723, 2012 U.S. App. LEXIS 492 (11th Cir. Jan. 10, 2012), the Court ruled on two issues relevant here:

1)     The Court found that plaintiff’s interference claim could proceed “because the [Family Medical Leave Act] contemplates notice of leave in advance of becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must necessarily protect pre-eligible employees, such as [plaintiff], who put their employers on notice of a post-eligibility leave request.” 
2)     In addition, the Court found that plaintiff could also state a cause of action for retaliation, holding that “a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.” 

See our blog post on Pereda and related cases for further discussion of these issues. 

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