5th Circuit Holds that Firing Female Employee Because She is Lactating or Expressing Milk is Unlawful Sex Discrimination under Title VII.

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

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