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Appeals Court Holds Discrimination Related to Breastfeeding is Protected by the PDA

By:  R. Eddie Wayland, TCA Legal Counsel

The federal appeals court based in Atlanta issued a decision in which it held that discrimination related to breastfeeding is protected by the Pregnancy Discrimination Act (PDA). The decision is an important one for employers to be aware of when considering accommodation requests made by pregnant or breastfeeding employees.

Background

The employee worked for the police department, first serving as a patrol officer, and then as an investigator on the narcotics task force. One difference between these positions was that as a patrol officer, the employee was required to wear a ballistic vest. While working as an investigator, the employee became pregnant. The employee received assignments that allowed her to avoid night and weekend work. The employee then took twelve weeks for Family and Medical Leave Act (FMLA) leave.

Upon the employee’s return from FMLA leave, she was told to start working with five to seven confidential informants. The employer claimed that the employee only met with one informant and failed to even speak with the other informants. The employer further claimed that the employee declined to work nights, did not meet with an informant after hours because the employee had to pick up her child from daycare, and opted not to attend a drug bust that occurred on a Saturday.

In a purported effort to help the employee get started talking to more informants, the employee’s supervisor arranged for the employee to participate in a “ride-along” with another agent and his informant. The employee, however, did not follow-up on the ride-along. As a result, the employee’s supervisor requested that the police chief reassign the employee from the narcotics task force back to the patrol division. The employee claimed that she had, in fact, “worked” several of the informants.

Thereafter—and only eight days after the employee’s return from leave related to her pregnancy—the employee was reassigned to the patrol division. As a result of the reassignment, the employee lost her vehicle and weekends off, and also received a pay cut. Additionally, as a patrol officer, the employee was now required to wear a ballistic vest.

Following her reassignment, the employee took additional time off due to postpartum depression. During this period of time, the employee’s doctor wrote a letter to the police chief recommending that the employee be considered for alternative duties because the ballistic vest she was now required to wear as a patrol officer could cause breast infections that lead to an inability to breastfeed.

The police chief denied the employee’s request for alternative duties and instead offered the employee the “accommodations” of (1) not wearing the ballistic vest or (2) wearing a vest that could be “specially fitted” for her. The chief further offered to assign the employee to a beat that allowed access to lactation rooms, and told her that she could get priority to take two breastfeeding breaks per shift.

The employee resigned as a result of the police chief’s response. The employee believed that not wearing the ballistic vest at all was too dangerous, and that the “specially fitted” vests were ineffective because they left large portions of the wearer’s chest unprotected. The employee then filed a lawsuit which included a claim for pregnancy discrimination brought under the PDA. After a trial, the jury found in favor of the employee on multiple claims and awarded her $374,000. The award was later reduced to $161,319.92 plus costs and attorneys’ fees. The employer then appealed.

Decision on Appeal

One of the arguments made by the employer on appeal was that the PDA does not protect employees from discrimination related to breastfeeding. The appeals court rejected this argument and held: “We have little trouble concluding that Congress intended the PDA to include physiological conditions post-pregnancy. The PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding ….” The court went on to note, however, that its “conclusion is not meant to displace the abundance of case law ruling that employers do not have to provide special accommodations to breastfeeding workers.”

The court stated that in the case before it, the employee did not request special accommodations or “more than equal treatment,” but merely sought “to be treated the same as ‘other persons not so affected but similar in their ability or inability to work’ as required by the PDA.” Specifically, the court noted that the employee was able to prove at trial that other employees with temporary injuries were given alternative duty, and that the employee had merely requested similar alternative duty.

Takeaway

Employers should keep these concepts in mind when responding to requests for accommodations from pregnant or breastfeeding employees. Employers should also be well-versed in additional protections afforded pregnant or breastfeeding employees by other laws, including federal, state, and local laws. For example, where Section 7 of the Fair Labor Standards Act is applicable, employers must provide reasonable break time for an employee to express breast milk for a nursing child for one year after the child’s birth each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. When faced with a situation involving pregnancy, breastfeeding, or expressing of breastmilk, employers should make informed decisions, including consulting experienced counsel if they have questions regarding these issues.

R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.

November 28, 2017

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