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Denial of accommodations for breastfeeding employee violated PDA

By Kathleen Kapusta, J.D.

Finding no reason to overrule a jury’s determination that the conditions offered by the Tuscaloosa police chief to a breastfeeding employee were so intolerable that a reasonable person would be forced to resign, the Eleventh Circuit held that the city’s denial of accommodations amounted to a constructive discharge and therefore violated the Pregnancy Discrimination Act. The appeals court also upheld the jury’s determination that the city violated the PDA and the FMLA when it reassigned her to a lesser position only eight days after returning from leave following childbirth. Accordingly, the court denied the city’s various post-trial motions (Hicks v. City of Tuscaloosa, Alabama, September 7, 2017).

After working as a patrol officer, the employee became an investigator on the narcotics task force, a position she held when she became pregnant. Her captain at that time allowed her to work on pharmaceutical fraud cases so she could avoid working nights and weekends, but her supervisor was upset that he allowed her to avoid “on call” duty. And although her supervisor told her she could only take six weeks of FMLA leave, the employee took 12 weeks.

Welcome back. Her captain was subsequently caught embezzling and was replaced. On the employee’s first day back from leave, she was written up. She was also told to start working with five to seven confidential informants. The employee claimed she overheard her supervisor tell the new captain she was a “bitch” and she would find a way to get the employee out of there. Another officer purportedly heard the supervisor call the employee “that stupid c***.”

Reassigned. Eight days after she returned from leave, the chief, based on the captain’s recommendation, reassigned her to patrol duty, purportedly because she was not willing to accept the new captain as her boss. As a result, she lost her vehicle and weekends off and was going to receive a pay cut and different job duties. Additionally, she was required to wear a ballistic vest all day.

Before she started back in the patrol division, however, she went on leave for postpartum depression. While on leave, her doctor recommended that she be considered for alternative duties because the ballistic vest was restrictive and could cause breast infections that lead to an inability to breastfeed. The chief, however, did not believe she had any limitations because other breastfeeding officers had worn ballistic vests without any problems.

Resigned. When she returned from leave, she requested a desk job where she would not be required to wear a vest and assurances that she would be allowed to take breaks to breastfeed. The chief, however, told her she could either not wear a vest or wear a vest that could be “specially fitted” for her. He also told her she would be assigned to a beat that allowed her access to lactation rooms and that she could get priority to take two breastfeeding breaks per shift. Believing that not wearing a vest was too dangerous and that the specially fitted vests were ineffective because they left gaping holes, she resigned.

Jury verdict. She then sued the city for pregnancy discrimination, constructive discharge, and FMLA interference and retaliation. The jury found in favor of the city on the FMLA interference claim, but in favor of the employee on all other claims. It awarded her $374,000, which was reduced by a magistrate judge to $161,319 plus costs and attorneys’ fees. The city then appealed the denial of its motion for judgment as a matter of law and for a new trial.

Reassignment. On appeal, the employee argued that her reassignment from the narcotics task force to the patrol division was both a discriminatory violation of the PDA and retaliation in violation of the FMLA. Agreeing, the court found that multiple overheard conversations using defamatory language plus the temporal proximity of only eight days from when she returned to when she was reassigned supported the inference that there was intentional discrimination.

Constructive discharge. As to the employee’s constructive discharge claim, in which the jury found that the conditions offered by the chief––patrolling without a vest or patrolling with an ineffective larger vest––were so intolerable that any reasonable person would have been compelled to resign, the court noted that the Fifth Circuit has held that lactation is a related medical condition to pregnancy and thus termination based on a woman’s need to breastfeed violates the PDA.

Breastfeeding covered by PDA. Agreeing with its sister Circuit, the court further observed that a plain reading of the PDA supports the finding that breastfeeding likewise is covered under the PDA. The Act specifically states that it covers discrimination “because of” or “on the basis of sex” and is “not limited to [discrimination] because of or on the basis of pregnancy, childbirth, or related medical conditions.” Given that Congress included pregnancy and childbirth and explicitly used the words “not limited to,” the court found it was a common-sense conclusion that breastfeeding is a sufficiently similar gender-specific condition covered by the broad catchall phrase included in the PDA.

Further, said the court, reading the Act’s language to cover breastfeeding is consistent with its purpose as it was meant to clarify that the protections of Title VII extend to the whole range of matters concerning the childbearing process including the physiological occurrences peculiar to women. “We have little trouble concluding that Congress intended the PDA to include physiological conditions post-pregnancy,” said the court, noting that the “PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding––an important pregnancy-related ‘physiological process.’”

Fine line. Explaining that this conclusion was not meant to displace the abundance of case law ruling that employers do not have to provide special accommodations to breastfeeding workers, the court explained that the “line between discrimination and accommodation is a fine one.” While taking adverse actions based on a woman’s breastfeeding is prohibited by the PDA, employers are not required to give special accommodations to breastfeeding mothers. Here, the employee’s case appeared to straddle that line, said the court, explaining that although the city may not have been required to provide her with special accommodations for breastfeeding, the jury found its action in refusing an accommodation afforded to other employees compelled her to resign. To the jury, this was a constructive discharge, which is an adverse action.

Moreover, the court reasoned, the employee was not asking for a special accommodation. Rather, she was asking 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. She showed that other employees with temporary injuries were given “alternative duty,” and she merely requested to be granted the same alternative duty. In this case, said the court, the denial of accommodations for a breastfeeding employee violated the PDA when it amounted to a constructive discharge.