Archive for February, 2012

What’s Next? The EEOC focuses on Pregnancy and Caregiver Discrimination.

I’m going to start out this post with a disclaimer. I’m not a big fan of Texas. And I don’t mean the Dallas Cowboys, I mean the State of Texas. In fairness, I haven’t spent that much time in Texas, but the time I did spend there cost me a bundle.

You see, I once got a speeding ticket in Texas. I contend that I got a speeding ticket in Texas because I didn’t have a Texas plate on the rental car that I was driving. My wife, of course, says I’m an idiot and I got a speeding ticket in Texas because I was speeding. Seems to me that the Texans who were passing me on the highway when I got pulled over were going just a bit faster than I was, but the sheriff’s deputy was honed in on the out-of-state plate and it cost me a cool $300 bucks to learn a valuable lesson: Don’t go to Texas. Of course, what I should have learned was don’t speed, but that’s beside the point.

So a couple of weeks ago, when I was reading the ABA Journal I was not all that surprised to see an opinion from the Southern District of Texas that was, well, a bit surprising.  In a case called EEOC v. Houston Funding II, Ltd. et al., the EEOC claimed that the plaintiff, a nursing mother, was terminated after her maternity leave because she wanted to pump breast milk at work. Of course, her employer had a different story, claiming that the plaintiff was terminated because she had abandoned her job.

Now all of that is pretty routine. What really caught me was one little paragraph (well, it’s really two paragraphs) in the opinion. The court said:

“Even if the company’s claim that she was fired for abandonment is meant to hide the real reason – she wanted to pump breast milk – lactation is not pregnancy, childbirth, or a related medical condition. She gave birth on December 11, 2009. After that day, she was no longer pregnant and her pregnancy-related conditions ended. Firing someone because of lactation or breast pumping is not sex discrimination.”

Wow. Yes, I said it: Wow! Now I know it’s not fair to blame the entire state of Texas just because this decision came from a court in Texas, but I’m going to do it anyway. Remember, I got a $300 speeding ticket in Texas.

So here’s what we are going to do. We are not going to rely on this decision when an employee asks to have time and a place to pump breast milk. And there are a couple of good reasons for that, besides the fact that I believe the court made the wrong decision.  First, the plaintiff was fired in 2009. Since 2009, the Patient Protection and Affordable Care Act amended the FLSA to provide for break time for nursing mothers. You can read about that here and here. Second, not surprisingly, the EEOC is considering an appeal of this decision. And finally, the EEOC is putting a spotlight on the issues of pregnancy and caregiver discrimination. In fact, a couple of days ago the EEOC held hearings. The press release is here.  Commissioner Ishimaru stated:

“Discrimination against pregnant women and caregivers continues to be an issue of vital concern for the Commission. Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers. EEOC will vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

So if you have not yet considered how you are going to handle the issue of an employee asking for time and a place to pump breast milk at work, now is the time —  before the EEOC answers the question for you.