Ruling: Lactation isn’t pregnancy-related. Seriously?

February 10, 2012

Lactation DiscriminationOn February 2, 2012, Judge Lynn Hughes of the U.S. District Court for the Southern District of Texas issued a ruling in Equal Employment Opportunity Commission v. Houston Funding II, Ltd.

The case is, as the name of the plaintiff suggests, an employment discrimination one.

The facts involved the termination of Donnicia Venters’s employment from Houston Funding, but the reason for the firing is different depending on who you ask.

According to Houston Funding, Venters was fired because she didn’t communicate the details of her maternity leave sufficiently (specifically, when she would be returning), so the higher-ups at the company just assumed she’d abandoned her job and ended her employment.

Frankly, the facts just aren’t there to corroborate that supposition.

The two-page long opinion, which you can read here, gives several instances where Venters was regularly and directly communicating with several individuals within the company, including her direct supervisor regarding her maternity leave.

If there was any confusion on the issue, the only conclusion a reasonable person could make from the facts is that the supervisors at Houston Funding didn’t put any effort into determining what happened to Venters.

But that’s all really beside the point here, which is found in the judge’s reaction to Venters’s claim on why she was fired.

She claims that she was fired because she wanted to use a back room during her normally scheduled breaks to pump breast milk.

She further asserts (correctly) that federal law protects against discrimination because of pregnancy, childbirth, or a related medical condition, and as such, her termination was illegal.

Judge Hughes claims that, even if Venters were fired simply because she wanted to pump breast milk at work, she wouldn’t have a claim because no sex discrimination occurred.

This is because, he said, “lactation is not pregnancy, childbirth, or a related medical condition.”

(Author’s note: I’m not terribly well-versed in Internet memes, so you’ll have to let me know how I do with this one.)


No further explanation on that assertion is given.

Instead, Hughes footnotes to a list of cases, all of which fail to support his theory and some outright hold the opposite (see the list of cases and explanation at the end of this post).

So, if you’re going to invent a new legal definition as to what exactly “pregnancy, childbirth, or a related medical condition” entails as Judge Hughes did, you’d need some medical evidence to support it.

He didn’t provide any, and that’s probably because none exists from any legitimate medical organization.


Because lactation is a direct result of pregnancy and childbirth.

Women’s bodies are supposed to begin lactation after childbirth, and there’s typically something wrong when this doesn’t happen (and there’s something wrong when it happens unrelated to childbirth).

Perhaps Hughes was basing his determination on the availability of formula (I can’t say for sure, since, as mentioned earlier, there’s no explanation included).

Such reasoning would be dangerous on a broad scale, though.

If “formula availability” truly served as a foundation for his conclusion, what Judge Hughes is really saying is that when a choice exists to opt-out of a federally-protected class, no protection will, in fact, be given.

Taken to its logical conclusion, this reasoning would also deny protection for any racial minorities who were able to successfully mask their identifying physical characteristics – a notion completely unsupported by any legal precedent so far.

The opinion doesn’t seem concerned with legal precedent, though.

Though the ruling will almost certainly be overturned on appeal, EEOC resources (and taxpayer dollars) will have to be used to get that result.

Given how the little precedent cited was done so incorrectly, it seems likely that Judge Hughes’s personal opinions found their way into the ruling.

It’s perfectly fine for a judge to have personal opinions, but it is exceptionally irresponsible to substitute opinion for legal precedent.

Cases cited in Judge Hughes’s opinion

Puente v. Ridge – The ruling never made any determination that breast-feeding is not related to pregnancy.  In fact, in describing the trial court’s opinion, the appeals court specifically noted that breast-feeding is “protected EEOC activity.”

Martinez v. N.B.C., Inc. – The plaintiff wasn’t fired because she wanted to breastfeed or pump at work.  She wanted special accommodations to breastfeed, and when she didn’t get them, she resigned.

Jacobson v. Regent Assisted Living, Inc. – The dispute is over whether a “new parent” is a protected class.  Lactation is never mentioned.  The plaintiff wanted the employer to make accommodations in her working schedule because she was a new parent.  The court specifically states that a discrimination arising from “pregnancy and maternity leave is sex discrimination.”

Wallace v. Pyro Min. Co. – The plaintiff wanted the employer to extend her leave of absence to try to wean her baby off of breast milk.  She wasn’t fired for asking to pump.  She was fired for refusing to return to work when her request for an extended leave was denied.