“So, Mr. Culbertson, when you found out that my client, Annie Dodds, would need a place at work to pump breast milk, you decided you didn’t want any part of that and you fired her,” plaintiff’s attorney Sue Moore said.
“That’s not true at all!” supervisor Matt Culbertson rejoined indignantly. “Ms. Dodds was fired for job abandonment.”
“She left in December to have her baby, but by mid-February she still hadn’t returned,” he said. “We’re not a huge company — there are only three employees in her department — and we couldn’t afford to have her out indefinitely. So we reluctantly let her go.”
A long absence
“Indefinitely,” Moore said slowly. “Really? Ms. Dodds had complications after her C-section, and it took a little longer than she expected for her doctor to clear her to come back to work.”
“But she stayed in touch with you throughout,” Moore went on. “Her cellphone records indicate she called at least once a week to inform you of her progress.” Turning toward the judge, the lawyer said, “Your honor, I suggest that’s not the behavior of someone who is abandoning her job.”
“And something else,” the attorney said, turning back to Matt. “My client claims that during one phone call, she asked you if she could use a breast pump at work, and you said it wasn’t possible, and if she needed to do that she should stay home longer.”
“Again, we’re not a big company,” Matt said. “We don’t really have the facilities or the space for women to pump breast milk.”
“Well, there’s a law requiring you to do just that,” Moore said drily. “But this case is about something else: discrimination against an employee because of pregnancy. Just a week after that phone call, she said she was ready to come back to work as long as she could pump milk, but you sent her a termination letter instead.”
“I told you why we did that,” Matt said. “And anyway, we did not discriminate against Annie because of her pregnancy. Pumping breast milk isn’t directly connected with pregnancy.”
Did Annie win her pregnancy discrimination case?
Yes, Annie won her case. A federal appeals court, in a precedent-setting decision, said the need to pump breast milk is indeed a pregnancy-related condition, and employers can’t discriminate against employees who are doing so.
That point wasn’t as evident as you might think. A federal district court initially said that pumping breast milk wasn’t pregnancy-related, but the appeals court ruled the other way.
Supervisors have two kinds of responsibilities toward employees who are breast-feeding:
- Under the Pregnancy Discrimination Act, you must not take job-related action – like termination, suspension, demotion or transfer – against them simply because you deem their need to express milk inconvenient or distasteful. As with other employees, you must judge them on their performance.
- Under the federal health care reform law, you must provide them with regular breaks to express breast milk and a private place – not a restroom – to do it in. The only exception is if you have fewer than 50 employees, and then you have to prove undue hardship.
Cite: EEOC v. Houston Funding II, No. 12-20220, 5th Cir., 5/30/13. Fictionalized for dramatic effect.
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