Lactation = Medical Condition under Federal Law
There are several federal laws with protections for pregnant employees and those employees experiencing complications from birth. Depending on the circumstances, FMLA, ADA and/or the Pregnancy Discrimination Act (“PDA”) may be triggered. In Hicks v. Tuscaloosa, the Eleventh Circuit ruled on a case involving an employee’s post-pregnancy lactation and need to nurse her newborn.
Hicks worked for the Tuscaloosa Police Department, on the narcotics task force and “exceeded expectations” according to a performance review given prior to her medical leave. Once pregnant, she was permitted to work on pharmaceutical fraud cases so she could avoid working nights and weekends. However, one of Hicks’ supervisors took issue with the work assignment accommodation and the length of her leave and told Hicks she would only be allowed six weeks off. Despite that warning, Hicks took 12 weeks of leave, as allowed by FMLA.
On Hicks’ first day back from leave she received a written reprimand. Hicks also overheard her supervisor saying “that b**ch” and claiming she would find a way to write Hicks up and get her out of the department. Eight days after Hicks return to work, she was reassigned to the patrol division, which involved a pay cut and different job duties. Notably, officers in the narcotics task force are not required to wear ballistic vests all day, whereas patrol officers – including Hicks in light of her reassignment – are required to wear vests.
Hicks’ doctor provided documentation recommending that she be considered for alternative duties because the ballistic vest that Hicks was now required to wear as a patrol officer was restrictive and could cause infections that lead to an inability to breastfeed. Hicks was provided with two options: 1) not wearing a vest; or 2) wearing a vest that could be specially fit. Hicks declined both offers and resigned immediately since she believed not wearing a vest was too dangerous and the “specially fitted” vests were ineffective because they left gaping holes. Hicks filed suit claiming pregnancy discrimination, constructive discharge, FMLA retaliation, and FMLA interference.
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.” One question for the court was whether lactation is covered under the PDA. The court reasoned that lactation is directly caused by hormonal changes associated with childbirth and pregnancy. On that basis the court ruled that lactation is a “related medical condition” and therefore covered under the PDA. Because Hicks was not afforded an “alternative duty” in light of her lactation and need to breastfeed, and other non-pregnant employees with temporary injuries had been accommodated with alternative duties in the past, she established that her employer discriminated against her.
Ultimately Hicks prevailed on all but the FMLA interference cause of action and was awarded more than $161,000, plus costs and attorney’s fees.
By all accounts, there are many symptoms during and after pregnancy which may impact an employee’s ability to conduct aspects of the job. The Hicks’ decision provides an interesting example of how employers must take steps to accommodate employees during and after child birth.