About Us  |  About Cheetah®  |  Contact Us

Black CSR told she couldn’t pump milk as often as needed without pay being docked advances pregnancy, race bias claims

By Kathleen Kapusta, J.D.

The employee testified that she needed to pump for about 30-45 minutes about four times a day; a white coworker needed to pump once per day for approximately 45 minutes.

An African-American customer service representative—who alleged that her supervisor told her that she could not pump breast milk as often as she needed biologically without it affecting her pay, that her lack of access to a private room to pump resulted in her pumping milk in a coworker’s car on one occasion and leaking breast milk through her shirt on another, and that a white coworker who also needed to pump was treated more favorably—can advance her Title VII pregnancy and race discrimination claims to trial. A federal court in Pennsylvania, however, granted summary judgment against her retaliation and hostile work environment claims (Winder v. TriCounty Medical Equipment, July 23, 2020, Robreno, E.).

Need to pump. Although she was five months pregnant when she was hired as a CSR by the medical equipment company, the employee did not disclose her pregnancy until orientation. She took an eight-week maternity leave four months later. When she returned to work, she asked for and was given access to a private room to pump breast milk. According to the employee, she biologically needed to pump for about 30-45 minutes approximately four times a day. A Caucasian coworker, who had also recently had a baby, biologically needed to pump only once a day for approximately 45 minutes.

Change in rooms. At some point, the private room was moved to a meeting room that could be reserved through an electronic scheduling program. The employee claimed, however, that she was often unable to reserve the room because it had already been booked. When she complained, her supervisors purportedly told her to use a closet or a bathroom. Instead, on one occasion when the room was unavailable, she pumped milk in a coworker’s car. On a second occasion, her milk leaked through her shirt and soiled it.

Need to clock out. Sometime after that, she alleged that her supervisor told her she could not pump milk as often as biologically necessary without it affecting her pay and if she needed to pump for more than the allotted break time, she would need to clock out and would not be paid. She claimed she was only allowed to pump during the scheduled 30-minute lunch break and the 15-minute morning and afternoon breaks. Her supervisor, however, purportedly blocked off an hour at lunch time for her coworker to pump.

Fired. Around three months after she returned to work, the company announced that it would be enforcing its attendance policy and after five days of unpaid time off employees would receive a warning; after a sixth day, they would be terminated. The following month, the employee told her supervisor she would not be able to work the following day. Although her supervisor told her she was “up to [her] limit” of unpaid time off, the employee took the day off anyway. She was fired the next day.

Discrimination. Addressing the employee’s Title VII pregnancy discrimination claim, the court first noted that while the Third Circuit has not expressly resolved whether a complaint based solely on the need to express breast milk is cognizable under Title VII, other courts have found that “lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter,” and thus is a medical condition related to pregnancy within the meaning of the PDA.

Based on pregnancy. The employee argued that the decision to terminate her gave rise to an inference of both race and pregnancy discrimination. As to pregnancy discrimination, she pointed to her coworker’s testimony that when she asked the supervisor why she hired a pregnant person, the supervisor responded “I didn’t know she was pregnant when I hired her,” which, said the court, could be construed to mean that the supervisor held a hostile attitude toward pregnant women. In addition, a customer service VP testified that he would not have approved the supervisor docking an employee’s pay if she needed to pump milk for more than the standard break time.

Based on race. As to racial discrimination, the employee pointed to her Caucasian coworker who also needed to pump milk, also worked in customer service, was supervised by the same supervisor, but was not terminated even though she had similar attendance and productivity issues.

Pretext. The company, however, argued the employee was terminated because of her excessive absences. But the employee pointed to evidence of pretext, including that the corrective action form her supervisor gave her before her termination was inconsistent with the supervisor’s prior representations about the company’s unpaid-time-off policy. Specifically, the employee alleged, the supervisor said that while she would start enforcing the policy in 2018, she would exclude any unpaid time off that had accrued in 2017. Contrary to this representation, however, 196 hours of unpaid time off accrued in 2017 was counted against the employee in the corrective action form. Further, while the supervisor also stated on that form that the employee’s absence was a “no call no show,” which was second justification for her termination, she later acknowledged that she had discussed the absence with the employee beforehand.

As for the race discrimination claim, the employee pointed to her coworker, who was not terminated even though the VP acknowledged that she also had “attendance issues, productivity issues, [and an] overall lack of work ethic.” Moreover, she was subject to the same time-off policy and answered to the same supervisor. Accordingly, the court denied summary judgment against the employee’s pregnancy and race discrimination claims.

Retaliation. Her Title VII retaliation claim failed, however, as she did not cite to any complaints she made regarding sex, pregnancy, or race discrimination. Her complaints that the designated pumping room was frequently booked made no mention of discrimination. Nor did she tell her supervisor she believed her lack of access to the room was due to her status as a nursing mother or a black woman. And even assuming her complaints were protected activity, she failed to establish a causal connection between those complaints and the unavailability of the room or her termination.

Hostile work environment. Nor could the employee advance her hostile work environment claim, in which she alleged that once when she told two men who were in the designated pumping room that she needed to use it to pump, one asked her “to pump what” and then looked at her breasts; that she was told to use the closet or a bathroom if the room was occupied; and that she had to pump in a coworker’s car one time and that her shirt was soiled on another occasion by leaking breast milk. While undoubtedly embarrassing, said the court, this was not sufficient to support the severe or pervasive requirement.