New Developments Surrounding Lactation Discrimination

June 12, 2013

New case law and statutory changes increase litigation and liability risk for employers that fail to comply with both federal and state lactation break laws.

When the Patient Protection and Affordable Care Act (ACA) was signed into law in 2010, we reported on a provision of the law that amended the Fair Labor Standards Act (FLSA) to require that covered employers offer unpaid lactation breaks to nursing mothers.[1] Employers should be aware of several new developments, which are summarized below.

Sex Discrimination Claims Under Title VII

On May 30, the U.S. Court of Appeals for the Fifth Circuit gave a boost to the Equal Employment Opportunity Commission's (EEOC's) position that lactation discrimination is a form of sex discrimination under Title VII by overturning a summary judgment victory for an employer in the district court. The decision represents a new direction for federal law and a potential new cause of action for employees denied the opportunity to express breast milk in the workplace.

In EEOC v. Houston Funding, an employee had a baby and then requested lactation space as part of negotiating her return to work. The employer rejected her request and suggested that the employee should continue to stay at home. She did stay home, and the company terminated her for job abandonment. The EEOC sued on the employee's behalf, and the U.S. District Court for the Southern District of Texas granted summary judgment to the employer, holding that the employee had no claim under Title VII because lactation was not a medical condition related to pregnancy.[2]

The EEOC appealed to the Fifth Circuit, which reversed, remanded, and ordered the employer to pay the plaintiff's costs for appeal.[3] The Fifth Circuit engaged in a plain-meaning analysis of the statutorily undefined term "medical condition," noting that lactation is a physiological process caused by hormonal changes associated with pregnancy and childbirth. Ultimately, the court held, for the first time, that discrimination on the basis of lactation is pregnancy discrimination protected by Title VII.

Notably, the employee's request in Houston Funding was made before the enactment of section 207(r) of the FLSA, which requires that an employer provide a private space to express breast milk.

The Fifth Circuit's holding represents a new split in authority, as all other federal courts and many state courts that have considered lactation issues in the context of Title VII have previously maintained that lactation is not a medical condition related to pregnancy. Notably, the U.S. Court of the Appeals for the Eighth Circuit has an appeal pending on the same issue, and the district court in that case relied on the district court's now-reversed opinion in Houston Funding.

Other Causes of Action Under the FLSA and ACA Amendments

The litigation landscape under the FLSA remains murky because the lactation breaks provision in section 207(r) does not have an explicit cause of action for break time, only for wage violations. Accordingly, the first district court to decide an FLSA lactation break claim, held, in an unpublished opinion, that a private cause of action might exist for retaliation claims related to lactation breaks under 29 U.S.C. § 215 but that enforcement actions for direct violations of the lactation breaks provision at section 207(r) were the province of the DOL.[4] However, a recent decision by the U.S. Court of Appeals for the Eleventh Circuit ruled on the merits of both a section 207(r) lactation breaks claim and a section 215 retaliation claim,[5] without addressing the issue of a private cause of action.

Additionally, there is another amendment to the FLSA that may affect litigation of the lactation breaks requirement. The ACA amended the FLSA to add 29 U.S.C. § 218c—the ACA's retaliation provisions. The text of this section purports to protect employees from discrimination or discharge for a long list of activities related to potential employer violations of any amendment created by the ACA. The lactation breaks provision of the FLSA is seemingly one such amendment, but no court has ruled as to whether section 218c creates a separate remedy for a lactation breaks violation.

What Employers Should Do

The risk associated with an employer's failure to accommodate a nursing employee is increasing. Recent litigation suggests that a noncompliant employer may face many different causes of action for such infractions, including (1) a cause of action under the sex discrimination provisions of Title VII, (2) a separate cause of action under the lactation provision of the FLSA, and (3) claims under the retaliation provisions of either law if the employee made a complaint followed by adverse employment action. That does not include the possible actions under a maze of state and local laws that protect similar conduct, especially as states begin to pass laws making it explicit that breastfeeding is protected conduct and/or that pregnancy-related conditions must be accommodated by employers.[6]

Ultimately, noncompliant employers could be forced to defend FLSA claims and weave through the EEOC administrative exhaustion requirements on the same set of facts. This compounds the risk of compensatory and punitive damages and fees as well as the risk of systemic litigation.

Appropriate planning can help mitigate this risk, however. Employers should review their policies to ensure that they are compliant with federal and relevant state law protections, which can be more expansive than the federal requirement. The DOL has reported that, for the first two years the lactation breaks amendment to the FLSA was in effect, it conducted 54 investigations and found 36 violations, the great majority of which related to employers' failure to provide a private space for lactation breaks. In addition to preparing to make appropriate spaces available, employers may benefit from offering training aimed at creating a culture friendly to nursing mothers. At least one case and one $200,000 settlement of a complaint involved lactating employees alleging that they were subjected to video surveillance while pumping. In the end, as case law continues to emerge in this area, it is clear that employers can decrease risk by establishing open lines of communication with employees to develop practical solutions to both issues of legal compliance and the employer's business needs.

Additionally, employers should carefully consider whether lactation breaks should be paid or unpaid. Although nonexempt employees are only entitled to unpaid lactation break time, the DOL has been clear that, when an employer offers compensated break time (typically 20 minutes or less), the employer must pay an employee who uses that time to express milk in the same manner as other employees and that an employee must be completely relieved from duty before a break can be unpaid.[7] Further, employers should be mindful that, although exempt employees are not technically covered by the lactation protections in section 207(r), employers may lose the right to claim that an employee is exempt by engaging in an actual practice of improper deductions from salary[8] and should, therefore, consider adopting a universal lactation break program.


If you have any questions or would like more information about how to implement a program that will most effectively allow you to comply with lactation break requirements under federal and state law, please contact one of the following Morgan Lewis attorneys:

Sari M. Alamuddin
Stephanie L. Sweitzer

Stefanie R. Moll
Nancy L. Patterson

Carrie A. Gonell
Barbara J. Miller

Los Angeles
John S. Battenfeld

Anne Marie Estevez

New York
Ira G. Rosenstein
Melissa C. Rodriguez

Sarah E. Bouchard
Michael J. Puma

Michelle S. Silverman

Christopher K. Ramsey

San Francisco
Eric Meckley

Washington, D.C.
Grace E. Speights

[1]. For more information on unpaid lactation breaks, see our April 7, 2010 LawFlash, "Healthcare Reform Law Requires Reasonable Break Times and Locations for Nursing Mothers," available here. For an analysis of the requirements of the law, the informal guidance published by the Department of Labor (DOL), analogous and related state lactation leave and breastfeeding laws, and counseling notes for employers, see our article, "Lactation Breaks in the Workplace: What Employers Need to Know About the Nursing Mothers Amendment to the FLSA," available here.

[2]. EEOC v. Houston Funding II, Ltd., No. H-11-2442, 2012 WL 739494, at *1-2 (S.D. Tex. Feb. 2, 2012) (holding that all pregnancy-related medical conditions "ended" the day the employee gave birth).

[3]. EEOC v. Houston Funding II, Ltd., --- F.3d ----, 2013 WL 2360114, at *3 (5th Cir. May 30, 2013). At the time of publication, the employer had not filed a motion for rehearing.

[4]. Salz v. Casey's Mktg. Co., No. 11-CV-3055-DEO, 2012 WL 2952998, at *7 (N.D. Iowa July 19, 2012).

[5]. Miller v. Roche Sur. & Cas. Co., 502 F. App'x 891 (11th Cir. 2012).

[6]. For more information, see our December 28, 2012 LawFlash, "New California Disability Regulations to Become Effective December 30," available here, and our October 3, 2012 LawFlash, "Another New Wave of Employment Laws in California," available here.

[7]. See DOL FAQs here.

[8]. See DOL Fact Sheet 17g here.