Have you ever had an employee go out on and return from maternity leave? Did any of those new moms breast feed their babies? I’m sure for many of you the answer is “Yes”. In that case, you may have received requests for permission to use a breast pump, or time to pump. Maybe someone even asked for a place to do so. Assuming no State law requires you to do so, do you have to accommodate a lactating mother? Many courts have ruled that the federal Pregnancy Discrimination Act does not require special
accommodations for nursing moms. Even so, you might still have to. Last week, the 11th Circuit Court of Appeals ruled on a case that appears to say exactly that. Read on and we’ll have a look at what you do and don’t have to do (and where that employer went wrong)…
(image from acmp.com)
The case is Hicks v City of Tuscaloosa. Stephanie Hicks was an investigator on the police department’s narcotics task force. Prior to her maternity leave, she received performance reviews of “exceeds expectations”. When she became pregnant, her captain allowed her to work a pharmaceutical fraud case that in turn allowed her to avoid working nights and week-ends. Her immediate supervisor apparently didn’t like that. More than once she told Ms. Hicks she should only take six weeks’ maternity leave. Ms. Hicks took the full 12 weeks allowed under FMLA. Upon her return from maternity leave she found that the captain had been replaced. Ms. Hicks overheard the supervisor telling the new captain that she would find a way to write Ms. Hicks up and “get her out of here”. Another officer overheard the supervisor say, “that stupid c*** thinks she gets 12 weeks. I know for a fact she only gets six.”
Wait, there’s more. Her late-night work obligations and the need to pick up her child from daycare presented new challenges. The new captain asked her why she didn’t meet with a drug informant at night or attend a Saturday drug bust. After their discussion, the captain requested that Ms. Hicks be reassigned back to the patrol division. The return to patrol meant that Ms. Hicks lost her vehicle, and weekends off, received a pay cut, was performing distinctly different functions and would have to wear a ballistic vest (bear with me, and you’ll see how the vest is very relevant.) Another agent warned Ms. Hicks that her supervisor “had it out” for her. In her letter outlining the reasons for the demotion, the supervisor cited Ms. Hicks’ failure to come to the door when officers came to her house to retrieve her vehicle. (But wasn’t that after the P.D. had already decided to demote her? Yeah, well, let’s not confuse the issues by bringing in such extraneous facts. ) Her husband did come to the door, explaining that his wife was breast-feeding. By the way her reassignment back to patrol occurred a whole 8 days after her return to work. (As they say, “Timing is everything”.)
OK, let’s get back to the ballistic vest. Ms. Hicks’ doctor wrote a letter recommending a light-duty assignment, because the required vest was too restrictive on her lactating breasts and created the risk of infections. The police chief said he did not believe that breastfeeding was a condition warranting light-duty. He suggested she either go without a vest or wear a specially fitted one. He also said she could be assigned a beat that afforded her access to lactation rooms and get priority for two breastfeeding breaks in each shift. That’s nice, but Ms. Hicks pointed out that both vest alternatives were dangerous. The danger of going without a vest altogether would seem pretty obvious. Even the “specially fitted” vest left gaping holes, which was also dangerous. Ms. Hicks therefore resigned that day and ultimately filed suit for FMLA retaliation and pregnancy discrimination. This case went all the way to trial and an appeal to the 11th Circuit. At trial, the jury found in favor of Ms. Hicks on both claims and, on appeal, the 11th Circuit upheld the jury verdict.
Let’s get the more obvious piece out of the way. The overheard comments from Ms. Hicks’ supervisor, along with the actions taken days after her return from maternity leave made it very easy for the jury to find for Ms. Hicks on the FMLA retaliation claim. You don’t really need me to elaborate on this one, do you? I mean the comments and the timing separately would likely make this a jury-worthy claim. Together, well there was just no way the police department was going to escape liability.
What about pregnancy discrimination though? Let’s have a brief look at the Pregnancy Discrimination Act. The PDA amended Title VII’s prohibition on discrimination “because of sex”. The US Supreme Court in Young v UPS, held that while pregnant women do not necessarily get special accommodations just because they are pregnant, they are entitled to the same accommodations that similarly situated non-pregnant employees would get. So, if someone who is disabled in some way that is similar to that of the pregnant worker gets light-duty or alternative duty assignments, the pregnant worker will probably be entitled to similar accommodations.
OK, that’s all well and good, but Ms. Hicks was not pregnant. She was, nursing. As I mentioned before, the courts have generally ruled that there is no obligation to provide accommodations to nursing mothers. So how, you ask, did Ms. Hicks win a pregnancy discrimination claim? The PDA also extends its protections to women with conditions that are a natural result of pregnancy, which lactation clearly is (and the courts generally recognize that reality). Again, employers under the Pregnancy Discrimination Act do not have to provide special accommodations just for pregnant women (or those with conditions arising out of pregnancy). However, if they provide certain accommodations, such as light-duty for those not covered under the PDA, they must do so for those who are. There lies the rub: The Tuscaloosa P.D. had provided alternative duty assignments to employees with non-pregnancy-related conditions, and so its failure to do so for Ms. Hicks was discrimination under the PDA. Had they never provided alternative-duty assignments to anyone ever, then the result of this claim would probably have been different.
So, note to self:
- Don’t discourage employees from taking all the time they are entitled to under FMLA;
- Don’t look to get someone fired or demoted upon their return from FMLA;
- If you need to take any adverse employment action against an employee returning from FMLA leave, tread lightly — and consult with counsel;
- If your employee is a nursing mom, don’t reject her request for accommodation out of hand. If you can reasonably accommodate the request, do it — especially if you have provided such an accommodation to similarly situated employees who either are not pregnant or do not have conditions arising out of pregnant.
Guess we can put this one to bed for now. See you next week!
ontents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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