Eleventh Circuit holds that Title VII covers breastfeeding
October 5, 2017 - Mandy Brown
The Eleventh Circuit has held for the first time that lactation is a medical condition covered by Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (PDA). The court upheld a verdict that a police officer’s post-maternity leave reassignment was discriminatory and retaliatory and that her department’s failure to accommodate her breastfeeding constituted discriminatory constructive discharge. (Hicks v. City of Tuscaloosa, 2017 WL 3910426 (11th Cir. Sept. 7, 2017).)
Stephanie Hicks was an investigator on the Tuscaloosa Police Department’s narcotics task force when she became pregnant in 2012. Before her maternity leave, Hicks received positive performance evaluations, with her final pre-leave review stating that she “exceeded expectations.” As she prepared for leave, Hicks’s supervisor instructed her to take off only six weeks; Hicks, however, chose to take the full 12 weeks of leave provided under the Family and Medical Leave Act (FMLA).
On her first day back at work, Hicks was written up for not changing the oil in her department-issued car, an infraction for which the department had never disciplined another officer. Hicks and another officer also overheard Hicks’s supervisor use profane language to complain about Hicks and her decision to take 12 weeks of leave.
Hicks and the department disputed whether Hicks’s job performance was satisfactory after her return. Only eight days after Hicks’s FMLA leave ended, Chief Steve Anderson met with Hicks and reassigned her from the task force to the patrol division. As a result, Hicks lost her work vehicle and weekends off and took a pay cut.
Before starting patrol duty, Hicks took additional leave after being diagnosed with postpartum depression. During this time, her doctor wrote Anderson a letter recommending that Hicks be considered for alternative duty because the restrictive ballistic vests patrol officers were required to wear could cause a breast infection and prevent Hicks from continuing to breastfeed.
After returning to work, Hicks met with Anderson again and requested a temporary desk job—an accommodation the department had offered to other officers unable to fulfill field duties. Anderson told her that she would be assigned a patrol beat with access to lactation rooms and have priority to take breaks but that he “did not consider breastfeeding a condition that warranted alternative duty.” In response to Hicks’s concerns about wearing the tight ballistic vest, he said that she could choose not to wear a vest or to wear a “specially fitted” one. Hicks resigned that day because not wearing a ballistic vest or wearing a “special” larger one—which gaped around the body and offered limited protection—would put her safety at risk.
Hicks sued the city of Tuscaloosa in Alabama federal court, and a jury found that her reassignment constituted pregnancy discrimination and FMLA retaliation and that she was constructively discharged. The court denied the defendant’s motions for judgment as a matter of law and for a new trial, and the defendant appealed to the Eleventh Circuit.
Tuscaloosa, Ala., attorney Julie Love, who represented the plaintiff, said their argument on appeal focused on emphasizing who Hicks was as a person, as well as the extensive evidence jurors had before them when reaching their decision. “My cocounsel Patricia Gill and I stuck with the theme we identified at trial: Stephanie Hicks is a good cop and a great mother. The city of Tuscaloosa tried to force her to choose between the two, but the law says she doesn’t have to.” The Eleventh Circuit agreed.
Reviewing the jury’s finding that Hicks’s reassignment was discriminatory and retaliatory, the court analyzed whether jurors had sufficient evidence to infer that Hicks faced intentional discrimination on the basis of her pregnancy. The court also reviewed whether Hicks had shown that she suffered retaliation and an adverse employment action because she had asserted a right protected by the FMLA. Pointing to the timing of Hicks’s reassignment and her supervisor’s profane criticism of Hicks's decision to take 12 weeks of FMLA leave, the court rejected the defendant’s claim that Hicks was reassigned due to poor performance and ruled that there was “ample evidence” to support the jury’s conclusion.
The court then turned to whether Hicks was constructively discharged when the department refused to accommodate her breastfeeding. While the defendant argued that there was no evidence of discriminatory animus and that efforts were made to support Hicks, the jury had found that the conditions the department imposed—patrolling with an ineffective vest or no vest at all—were “so intolerable that a reasonable person would be forced to resign.”
The Eleventh Circuit began its analysis by addressing a question of first impression before the court—whether breastfeeding is protected under Title VII and the PDA. The court found that it is, explicitly recognizing lactation as a medical condition related to pregnancy. The Eleventh Circuit is the second federal appeals court to reach this conclusion, following the Fifth Circuit in Equal Emp’t Opportunity Comm’n v. Houston Funding II, Ltd., 717 F.3d 425 (5th Cir. 2013).
Having determined that breastfeeding is covered by the PDA, the court then examined the defendant’s obligation to accommodate Hicks. The court cited Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), which held that a pregnant woman had a Title VII claim when she could show that her employer refused to accommodate her but did so for other employees.
Applying Young’s logic, the Eleventh Circuit concluded that although the defendant was not required to offer Hicks special accommodations for breastfeeding, they were required to offer her accommodations afforded to other similarly situated employees. By denying Hicks’s request for alternative duty, an accommodation available to other employees, the defendant denied her equal treatment. Finding “no reason to overrule,” the Eleventh Circuit upheld the jury’s finding that the defendant’s failure to accommodate Hicks’s breastfeeding by providing her alternative duty constituted discriminatory constructive discharge.
Silver Spring, Md., employment attorney Raymond Jones anticipates that the impact of Hicks will soon extend beyond the Eleventh Circuit. “I found footnote nine the most compelling part of this decision. There, the court reasons that ruling the other way—that the PDA does not cover breastfeeding—would give employers a ‘liability loophole,’ enabling them to wait until after an employee gives birth to impose a discriminatory action. As the Eleventh Circuit says, that’s clearly not what was intended under the PDA, and it’s going to be difficult for other courts to argue against this reasoning. I think we’ll see other circuits follow suit.”