Appellate Court Rules Tuscaloosa Discriminated Against Lactating Police Officer
The protection of pregnant women in the workforce has been a hard-fought battle. The low point in the legal history came in the mid-1970s, when the Supreme Court held in two cases that pregnancy discrimination is not sex discrimination, because employment practices directed at pregnancy apply equally to both genders. In other words, pregnant women and pregnant men were equally subject to adverse employment actions that target pregnancy.
That tortured logic was consistent with the Supreme Court’s thinking in a 1908 decision that upheld work-hour limitations for women because the “performance of maternal functions” made women incapable of working as hard as men. (In fairness, the issue in 1908 concerned the power of states to interfere with employment relationships for purposes of health and safety; sex discrimination was not outlawed until the Civil Rights Act of 1964 and was not recognized as an equal protection violation until 1971.)
Congress remedied the Supreme Court’s flawed analysis in 1978 by passing the Pregnancy Discrimination Act (PDA). The PDA amended the Civil Rights Act by expanding the prohibition of discrimination “because of sex” to include discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The PDA also provided that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”
While the PDA’s purpose seems clear, its implementation has been less so. Women who have given birth often want (or need) to express their breast milk, but some employers are reluctant to allow them to do so during their break time. A provision of Obamacare amended the Fair Labor Standards Act by requiring employers to provide reasonable break times for an employee to express breast milk for one year after the child's birth and to provide a private place that the employee can use for that purpose.
The Obamacare amendment affected the FLSA, not the PDA. The amendment left open the question whether discriminating against a woman who expresses breast milk violates the PDA. In Hicks v. Tuscaloosa, decided December 7, 2017, the Court of Appeals for the Eleventh Circuit decided that it does.
Officer Hicks’ Lawsuit Against Tuscaloosa
Stephanie Hicks worked for the Tuscaloosa Police Department as a narcotics investigator. She became pregnant in 2012. She did not want to work nights and weekends during her pregnancy so her captain reassigned her to investigate pharmaceutical fraud cases. Hicks took twelve weeks of leave, as permitted by the Family and Medical Leave Act (FMLA), to give birth.
Hicks’ immediate supervisor, Lt. Teena Richardson, was openly critical of the decision to relieve Hicks of “on call” duty during her pregnancy. She also criticized Hicks’ decision to take twelve, rather than six, weeks of leave despite Hicks’ statutory right to do so.
Richardson had always given Hicks excellent performance evaluations before her pregnancy. On Hicks’ first day back from her FMLA leave, she gave Hicks a write up. Richardson also told various people that she was going to find a way to get Hicks out of the police department because she took too much leave.
Richardson told Hicks that she should start working with several informants. She then claimed that Hicks only met one of them, but Hicks testified that she was never introduced to the others. The city nevertheless used Hicks’ alleged job performance failure as an excuse to discipline her.
Just eight days after her return from FMLA leave, Hicks was reassigned from narcotics to the patrol division. Her new position carried less responsibility, fewer privileges, and less pay.
Patrol officers wear ballistic vests. Hicks’ doctor wrote a letter advising the city that Hicks was breastfeeding and that the vest might cause an infection. For that reason, Hicks asked to be assigned to a desk job until she finished lactating.
The police chief told her she would continue on patrol but gave her two options: work without wearing a ballistic vest, or wear a “specially fitted” vest. Since the “specially fitted” vest had substantial gaps, Hicks considered both options to be too dangerous. She resigned from the police department because it failed to accommodate her condition.
Hicks sued the city for retaliating against her for exercising leave rights provided by the FMLA. She also sued for pregnancy discrimination. The jury returned a verdict in her favor on both claims, as well as a related claim of constructive discharge.
The jury awarded Hicks $374,000. The trial judge reduced the award to about $161,000. The city appealed.
The Court of Appeals upheld the jury’s determination that Hicks was reassigned to patrol duty in retaliation for exercising her FMLA rights and because of her pregnancy. The jury was entitled to find that the city’s complaints about Hicks’ job performance were unfounded and were therefore a pretext to mask a retaliatory intent.
Moreover, the officers responsible for the reassignment made negative comments about Hicks’ pregnancy and her use of leave that amounted to admissions that they acted with discriminatory intent. The jury was therefore entitled to conclude that the retaliated and discriminated against Hicks when it reassigned her to the patrol division.
The more difficult question is whether a failure to allow a lactating woman to express breastmilk constitutes discrimination. A constructive discharge claim equates an employee’s resignation to a termination when an employer’s violation of the employee’s rights makes work so intolerable that any reasonable employee would resign. The jury found that the city constructively discharged Hicks by failing to accommodate her need to express her breastmilk.
To determine whether Hicks’ rights were violated, the Court of Appeals needed to decide whether lactation and pumping breastmilk are covered by the PDA. While the court noted that federal courts are divided in answering that question, it had little difficulty concluding that lactation is a medical condition related to pregnancy. Congress used the term “condition,” not disease, and any physiological condition is, by definition, a medical condition.
The Court of Appeals found no reason to differentiate lactation and expressing breastmilk. The PDA prohibits discrimination “because of” pregnancy-related medical conditions, and women express their breast milk because of a medical condition (lactation). Expressing breastmilk is an “important physiological process” that is “inextricably intertwined” with lactation, and the protection of pregnant women in the workplace would be undermined by protecting lactation but not the expression of breastmilk.
Discrimination Versus Accommodation
The PDA does not expressly require employers to accommodate a pregnancy. The city argued that it had no duty to accommodate Hicks by assigning her to a desk job. It also argued that it assigned her to a part of the city that isn’t particularly dangerous, and that whether or not to wear a ballistic vest was her choice. The city contended that it did everything the law required it to do.
The Court of Appeals noted that the line between discrimination and accommodation can be difficult to recognize. The court ruled that employers are not required to give special accommodations to lactating workers. However, Hicks presented evidence that injured officers are assigned temporary desk duty while they recover. Since she asked for equal treatment for her condition, she was not seeking a special accommodation.
Hicks’ position was consistent with a recent Supreme Court decision. In that case, a pregnant woman asked to be relieved of the obligation to lift heavy weights before her pregnancy precluded her from doing so. The employer allowed employees with back injuries and other medical decision to do their jobs without lifting heavy weights, but it did not give that same benefit to pregnant employees. The Supreme Court held that the employer engaged in pregnancy discrimination by failing to give the pregnant employee an accommodation that it gave to nonpregnant employees with similarly disabling conditions.
In light of that precedent, the jury was entitled to conclude that Hicks did not ask for special treatment, and that the city’s refusal to give her a temporary assignment to a desk job made the conditions of her employment intolerable. The Court of Appeals therefore affirmed the jury’s verdict that Hicks was constructively discharged.