Title VII prohibits discrimination on the basis of sex. The Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy, childbirth or a related medical condition. In EEOC v. Houston Funding, LLC, the trial court held that because lactation is not “pregnancy, childbirth, or a related medical condition,” firing an employee because of lactation or breast-pumping is not discrimination. On appeal, the Fifth Circuit disagreed, and held that discharging a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII.http://eeoc.gov/eeoc/newsroom/release/5-31-13a.cfm
Under Oregon law, discrimination because of sex is defined to include “discrimination based on pregnancy, childbirth and medical conditions and occurrences related to pregnancy and childbirth.” OAR 839-005-0021. Accordingly, if faced with this issue, a court in Oregon that was applying Oregon law, would likely agree with the 5th Circuit – as lactation is arguably an occurrence related to childbirth.
This decision is also a reminder that Oregon and federal law require employers to provide nursing mothers with breaks to express breast milk. http://www.oregon.gov/boli/TA/docs/t_faq_expression_of_breast_milk2.pdf http://www.dol.gov/whd/regs/compliance/whdfs73.htm
