By Amy Messigian

Last month, the California Court of Appeal ruled that a former employee of Forever 21 must try her claims against the retailer in arbitration, enforcing the company’s employment arbitration policy and reversing a lower court decision finding the agreement unconscionable under California law.  The plaintiff, Maribel Baltazar, alleged that she had been discriminated against by the retailer due to her race and sexually harassed by a supervisor and coworker.  She filed a complaint against Forever 21 and several of its employees in the Los Angeles Superior Court and the retailer moved to compel Baltazar to arbitration.

Reversing the lower court, the Court of Appeal found that Baltazar had been given the opportunity to review the arbitration agreement, which was contained in her employment contract, and that the contract’s provision allowing the parties to seek injunctive relief in court did not unduly favor Forever 21.  The panel noted that six of the claims asserted in Baltazar’s suit were brought under the Fair Employment and Housing Act (“FEHA”), which authorizes injunctive relief, and that there was nothing to suggest that the employer would be more likely than the employee to seek provisional remedies.

Injunctive relief provisions have sounded the death knell for many employment arbitration agreements in California of late, with multiple appellate decisions citing an injunctive remedy as unduly favoring the employer.  Ostensibly, these courts are inclined to believe that an employer is more likely than an employee to seek injunctive relief.  The Baltazar court felt otherwise. Until this issue is considered by the California Supreme Court, it remains likely that the luck of the draw will ultimately decide whether an arbitration agreement is enforceable if it contains a provisional remedies provision that allows parties to seek an injunction in court.

By William Stein

In rolling out arbitration policies, retail employers should heed the recent California Court of Appeal decision Gorlach v. The Sports Club Co. That case gives employers reason to be cautious when asking employees to sign agreements requiring them to arbitrate any disputes arising out of their employment.  In that case, the trial court found the former Director of Human Resources, who was responsible for obtaining employees’ signatures on a mutual agreement to arbitrate claims, intentionally misled the company into believing that had signed the agreement when she had not.  Nevertheless, it denied the company’s motion to compel.  The Court of Appeal affirmed, holding that, even though she misled the company, she was not bound by the arbitration agreement because she did not sign it. Human Resources.jpg

The Court of Appeal decision is a cautionary tale for all retail employers that require their employees to sign arbitration agreements.  It emphasizes that retail employers should have procedures in place to make sure that employees sign arbitration agreements.  But it requires employers to have to go a step further: they must also have safeguards in place to make sure that those in charge of collecting such signatures also sign the agreement.  If not, such employees, even if they are members of the executive team, can mislead their employers into believing that they have signed the arbitration agreements and still not be required to arbitrate claims arising out of their employment.

By Amy Messigian

On October 11, 2012, the California Supreme Court granted review of Patterson v. Domino’s Pizza to address the circumstances in which a defendant franchisor may be held vicariously liable for tortious conduct by a supervising employee of a franchisee.

Like many fast food chains, Domino’s Pizza (“Domino’s”) is a franchising operation in which individual franchisees operate storefronts under the Domino’s name.

In Patterson, the plaintiff, a sixteen-year-old employee of a Sui Juris, a Domino’s Pizza franchisee (“Sui Juris”), alleged that she was sexually harassed and assaulted at work by an assistant manager of the store.  She filed a lawsuit against various Domino’s-related entities, including Sui Juris and Domino’s, as well as the assistant manager, alleging causes of action under the California Fair Employment and Housing Act, along with assault, battery and intentional infliction of emotional distress.  She claimed that Domino’s was vicariously liable for the supervisor’s actions.

Although Sui Juris’ owner testified that he received employment direction from Domino’s and that his operation was monitored by Domino’s inspectors, the trial court granted summary judgment for Domino’s on the grounds that Sui Juris was an independent contract and was not an agent of Domino’s. Particularly, it noted that the franchise agreement between Domino’s and Sui Juris provided that the latter was responsible for supervising and paying store employees. On this basis, the trial court concluded that Domino’s had no role in Sui Juris’ employment decisions.

The plaintiff appealed and the California Court of Appeal reversed the trial court. The appellate court stated that the nature of the franchise relationship will determine whether a franchisor is vicariously liable for injuries to a franchisee’s employee and that while a franchise agreement is relevant, it is not the exclusive evidence of the relationship between a franchisor and a franchisee.

[T]he franchisor may be subject to vicarious liability where it assumes substantial control over the franchisee’s local operation, its management-employee relations or employee discipline.

Here, the court determined that Domino’s exercised significant control over Sui Juris’ employees through the franchise agreement, which allows Domino’s to set employee qualifications and standards for their demeanor and appearance. The court also determined that Domino’s asserted control over other areas of the business, such as store hours, pricing, advertising, equipment usage, recordkeeping and Sui Juris’ insurance policies, which required naming Domino’s as an additional insured. Most importantly, the court concluded the Domino’s had instructed Sui Juris to terminate the assistant manager as well as another employee of the store for violating company policy, and that Sui Juris had acted based on these instructions. Accordingly, the court reversed the order of summary judgment.

Domino’s has appealed to the California Supreme Court, which will determine whether a franchisee’s employee may bring an action against the franchisor for harassment or other wrongful acts alleged to have been committed by another employee of the franchisee. The line drawn by the Court will be of interest to any retail establishments operating under franchise agreements. If the appellate court’s decision is affirmed, franchisors that establish employment standards or communicate opinions regarding hiring or firing decisions to their franchisees may risk vicarious liability in actions brought by the franchisee’s employees, even if they do not facilitate operations of the franchisee on a daily or continual basis.

By Amy Messigian

On September 8, 2012, California Governor Jerry Brown signed the Workplace Religious Freedom Act into law.  The law, which becomes effective on January 1, 2013, amends the California Fair Employment and Housing Act (the “Act”) to include a religious dress practice or a religious grooming practice as a belief or observance covered under the Act’s protections against religious discrimination.

The new law also specifies that it is not reasonable to segregate an employee from the public or other employees as an accommodation of the individual’s religious dress practice or religious grooming practice.  Inasmuch, retail employers may not limit such employees to the back of the store due to their religious attire or grooming practice.

As with any new law, sure to come is a bevy of litigation testing the area of grey between the black and the white.  A new case involving The Walt Disney Company (“Disney”) may lead the way.  In August 2012, Imane Boudlal, a former employee of the Storytellers Café at the Grand California Hotel & Spa, located at the Disney Resort in Anaheim, California, filed a lawsuit against Disney alleging religious discrimination and harassment.

Boudlal, a naturalized U.S. citizen of Moroccan origin who is Muslim, began working for Disney in 2008.  Two years later, she decided to permanently wear a hijab, the headscarf worn by Muslim women.  She alleges that she asked her supervisors at Disney for permission to wear the hijab at work, but was informed that it violated the Disney “look.”  Boudlal further alleges that Disney did not enforce its “look” policy on an equal basis, and that other employees were allowed to visibly display tattoos, religious insignia or ostentatious hair and nails.  Boudlal also alleges that she offered to wear a hijab in colors matching her uniform, but that Disney rejected her offer and instead suggested that she be transferred to a position at the back of the restaurant or wear a hat on top of her hijab.

Although Disney has not had an opportunity to make its case at this early stage of the litigation, it issued a statement decrying the allegations in Boudlal’s complaint.  Particularly, the statement indicates that Boudlal was provided with multiple options to accommodate her beliefs, as well as several options to allow her to continue wearing her own hijab, all of which were rejected.  The statement also indicates that Boudlal has since refused to return to work.

Supposing that Disney allowed Boudlal to wear her hijab, but also requested that she cover it with a hat, it is unclear whether such actions would violate the Act.  Also unclear is whether the Act permits an employer to provide a headdress that matches its uniform.

What is clear is that employers should proceed with caution when addressing religious accommodation issues and avoid excluding the employee from customer interaction simply due to the employee’s religious dress or grooming practices.  Before any accommodation is provided or denied, legal counsel should be sought to ensure that the decision does not run afoul of the Act.

By: Michael S. Kun, as appeared on the Wage & Hour Defense blog

Employers with operations in California have become aware in recent years of an obscure provision in California Wage Orders that requires “suitable seating” for some employees. Not surprisingly, many became aware of this provision through the great many class action lawsuits filed by plaintiffs’ counsel who also just discovered the provision. The law on this issue is scant. However, at least two pending cases should clarify whether and when employers must provide seats – a case against Bank of America that is currently before the Ninth Circuit Court of Appeal, and a case against K-Mart that is now being tried in the United States District Court for the Northern District of California.

The wave of representative and class action lawsuits alleging that employers failed to provide suitable seating in violation of Labor Code § 1198 and Wage Orders was triggered by the Court of Appeal ruling in Bright-v-99Cents-Only, 189 Cal.App.4th 1472 (2010), permitting “suitable seating” claims to proceed under California Private Attorney General Act (“PAGA”). Prior to that ruling, “suitable seating” lawsuits were few and far between. All it took was a single published opinion to let the plaintiffs’ bar know about this potential claim and to begin to seek plaintiffs to bring these claims against their employers.

Importantly, the seating provisions of the Wage Orders do not require all employers to provide seating to all employees. Instead, the provisions state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

As the former Chief Deputy Labor Commissioner explained in 1986, these seating provisions were “originally established to cover situations where the work is usually performed in a sitting position with machinery, tools or other equipment. It was not intended to cover those positions where the duties require employees to be on their feet, such as salespersons in the mercantile industry.”

In Green v. Bank of America, the district court relied upon this opinion in dismissing a putative “suitable seating” class action with prejudice, holding that an employer need only give seats to individuals who request them – and there was no allegation in the complaint that any employee had requested a seat. That decision is now on review before the Ninth Circuit, which presumably will determine what “provide” means in the context of the “suitable seating” requirements. The Court may well look to the California Supreme Court’s Brinker v. Superior Court decision for guidance on that issue. There, in the context of requirements that employers “provide” meal and rest periods to employees, the California Supreme Court determined that “provide” means that the employer make the meal and rest periods available, but need not ensure they are taken. That would suggest that, in the “suitable seating” context, an employer must make seats available to appropriate employees, but need not ensure they take them. That, of course, would beg the question of who is entitled to seats in the first place.

The “suitable seating” trial relating to K-Mart’s cashiers that has commenced in San Francisco – Garvey v. Kmart — promises to look at that and other issues. Among other things, that trial should address the impact employers’ expectations and preferences have upon whether “the nature of the work reasonably permits the use of seats.”

Plaintiffs in “suitable seating” cases normally argue that a seat must be provided if the job “could” be done seated. Of course, that is not what the Wage Orders state. Many jobs “could” be done while seated. Whether they can be done as well while seated is a different issue entirely. (One is reminded of the famous Seinfeld episode where George Costanza insisted on getting a rocking chair for a jewelry store security guard; the guard then fell asleep as the store was robbed right in front of him.)

Among other things, employers in the hospitality and retail industries often wish to have persons in some positions standing in order to make eye contact with customers, establish a relationship with them and be in the best position to assist them. It is too easy for customers to ignore someone who is seated, or not even notice that person. The Kmart trial should provide some guidance as to whether such expectations and preferences are to be given weight.

These two cases should provide some much needed clarity as to whether and when seats must be provided to certain employees. In the meantime, employers would be wise to let employees know whether and why certain jobs are expected to be performed while standing.

Black Friday.jpgBy Jennifer Barna

As shoppers and retailers get ready to celebrate “Black Friday” —  the kickoff to what we hope will  be a busy holiday shopping season —  it’s a good time for retail employers to review their policies on timekeeping and to ensure that non-exempt employees know how to record their working time.  Where is it not prohibited by state laws concerning meal and other breaks, employees may sometimes end up missing all or part of an unpaid meal break due to the demands of a busy sales floor. Employers need make sure employees are properly compensated for time spent working during what would have been an unpaid break, and to protect against allegations to the contrary under the federal Fair Labor Standards Act or similar state wage laws. It will go a long way in avoiding, and if necessary, defending against such claims if your company timekeeping policies are carefully drafted, circulated, and followed.

The Sixth Circuit Court of Appeals recently issued a ruling that provides some guidance on this issue.  In White v. Baptist Memorial Healthcare Corp, et al (No. 11-5717) (6th Cir., Nov. 6, 2012)  the plaintiff, a nurse, claimed that she was not compensated for work done during her unpaid meal break time at the defendant hospital.  The Sixth Circuit upheld the lower court’s dismissal of plaintiff’s claims because the employer’s handbook included an “exception log” mechanism that allowed employees to report when they missed all or part of a meal break, and that Plaintiff knew about, but failed to take advantage of, that mechanism.

Relying upon prior decisions from other federal appeals courts, the White Court found:  “Under the FLSA if an employer establishes a reasonable process for an employee to report uncompensated work time, the employer is not liable for non-payment if the employee fails to follow the established process.”  Employers should be guided by this finding, and ensure that they have policies in place that clearly inform non-exempt employees how to record or report all time worked, including instances of missed or interrupted meal breaks.

Having the appropriate policies in place is, of course, just the first step.  It is also imperative for those policies to be sufficiently communicated and enforced.  For example, in ruling for the employer in White, the Sixth Circuit found it significant that: (a) Plaintiff admittedly knew about the “exception log” policy in the handbook (and had, in fact, used it successfully on occasion to obtain pay for time worked during her meal break period); and  (b) there was no evidence that the defendant employer discouraged its employees from reporting time worked during meal breaks or that the employer was otherwise notified that their employees were failing to report time worked during meal breaks.

Retail employers should therefore ensure not only that their non-exempt employees know about the time recording policies, but also that their supervisory managers (whether non-exempt or exempt) who work “on the ground” at the retail locations know about, and enforce, the policies.  Even if a company has the right policies in place, it could all be for naught if there is evidence that managers routinely look the other way as employees are required to work through all or part of their unpaid meal break without compensation.


by Barry Asen

New York management-side attorneys and their clients were surprised and chagrined when they read Bennett v. Health Management Systems, Inc., a case decided in December 2011 by the New York State Supreme Court, Appellate Division, First Department (“the First Department”), which sits in Manhattan.  Writing for the unanimous five-judge court, Justice Rolando Acosta directed that because the New York City Human Rights Law (“NYCHRL”) explicitly provides that it should be liberally construed, summary judgment motions should only be granted in the employer’s favor in “rare and unusual” circumstances.

Justice Acosta stated that even if a terminated employee is unable to produce any evidence of discrimination, summary judgment should be denied and a jury trial ordered if the employee can show that the employer’s reason for the termination is “false, misleading or incomplete.”  For example, if an employee with a poor performance record is terminated because of his performance, but his supervisor – to spare his feelings – tells him only that his job was eliminated, a jury trial would be required to determine whether discrimination occurred under the NYCHRL.  Under federal and New York State law (e.g., Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the New York State Human Rights Law), summary judgment for the employer would likely be granted in such circumstances based on the absence of evidence pointing to discrimination as the reason for the termination.

Recently, however, in Melman v. Montefiore Medical Center, (1st Dep’t May 29, 2012), a different First Department panel disagreed with the Bennett decision.  In a 4-1 majority opinion, with Justice Acosta as the lone dissenter, the First Department returned to the traditional guiding rule in employment discrimination cases that to defeat an employer’s summary judgment motion, the employee must not only produce some evidence showing that the employer’s reason for its decision was “false, misleading or incomplete,” but also evidence demonstrating that “discrimination was the real reason” for the employer’s decision.

The First Department in Melman explained that when there is no evidence of discrimination, a court “should not sit as a super-personnel department that reexamines an entity’s business decision.”  Referring to one of Justice Acosta’s contrary arguments, the Court stated that his “approach appears quite radical to us.”  And the Court concluded, using language that all employers can appreciate, “we see no justification for allowing a meritless lawsuit to continue to divert Montefiore’s limited resources, and the time attention of its staff, from the hospital’s true mission of advancing medicine, protecting public health, and healing the sick.”

The First Department’s decision in Melman is consistent with the decisions of other courts construing federal and New York State anti-discrimination laws.  While the NYCHRL will continue to be interpreted liberally by all courts, an employee is still required to come forward with some evidence of discrimination or else summary judgment should be granted.

by: Lauri F. Rasnick and Margaret C. Thering*

Title VII of the Civil Rights of 1964 (“Title VII”) not only prohibits employers from discriminating against employees or prospective employees because of their religion, but it also requires employers to “reasonably accommodate” the religious practices of employees provided that such reasonable accommodations do not cause the employer “undue hardship.”  According to the EEOC Compliance Manual, reasonable accommodations may include, among others, scheduling changes, voluntary shift swaps, lateral transfers, and other workplace policy/practice modifications.

The topic of religion can pose tricky issues for employers.  Often, issues involving religion come up before the employment relationship is even cemented.  The EEOC seems to be taking a significant interest in such matters, as it recently filed two lawsuits against national companies for religious discrimination against prospective employees.

Two Lawsuits

On March 3, 2012, the EEOC filed a Title VII discrimination case against Convergys in the U.S. District Court for the Eastern District of Missouri.  EEOC v. Covergys Corp., (E.D. Mo. 2011).

Convergys placed an advertisement stating that applicants for a customer service position should be able to work a flexible work schedule and overtime.  A Jewish applicant informed the company’s recruiter during an interview that he would not be able to work on the Jewish Sabbath.  The recruiter allegedly responded that if applicant could not work Saturdays, the interview was over.

The complaint alleged that the company violated the law by refusing to hire the Jewish applicant or other employees based on their refusal to work on Saturdays because of their religious beliefs.  The EEOC sought, among other things, injunctive relief to enjoin Convergys from refusing to hire on the basis of religion and denying reasonable religious accommodations to its employees.  The EEOC claimed that given the large size of the call center (approximately 500 employees), it would not be impossible to give an employee an alternative work schedule.  According to the EEOC, the company violated Title VII by refusing to hire the applicant without even discussing possible accommodations for his religion.

Convergys settled the case by agreeing to pay $15,000 and entering into a two-year consent decree which obligates the company to make sure that its recruiters are trained on religious discrimination.  The company must also provide a notice to all future applicants that accommodations may be available for their religious beliefs.

In June 2012, the EEOC filed another religious discrimination complaint against Voss Electric Co. d/b/a Voss Lighting In this case, one of the company’s supervisors listed an employment opportunity for  Voss on the Internet board of the First Baptist Church of Broken Arrow.  An applicant who heard of the opening through a client who was a member of the church applied for the job.  After a successful first interview, the applicant’s name was passed on to the branch manager who communicated with the applicant at length about his religious affiliations and ties to First Baptist Church of Broken Arrow.  The branch manager asked the applicant to identify every church he recently attended, where and when the applicant was “saved,” and whether the applicant was willing to come into work early to attend Bible study.  The branch manager openly disapproved of the applicant’s (negative) answers, and the position was not offered to him.

As the open position involved no religious duties whatsoever and the EEOC believed that the job was not offered because of the applicant’s religious beliefs, it found the company’s decision not to hire the qualified applicant discriminatory.  The EEOC is therefore seeking to enjoin the company from refusing to hire on the basis of religion and denying reasonable religious accommodations in addition to monetary damages.

The Take-Away for Employers

Both of these recent lawsuits should remind employers to put in place non-discriminatory policies and procedures at the recruitment stage.  Employers should:

  • Train recruiters and other personnel conducting interviews about what questions can and cannot be asked and what considerations should be made in the hiring process.
  • Interviewers cannot ask any questions about a potential employee’s religious beliefs, affiliations, and/or current or future practices.
  • Interviewers can ask if potential employees are available to work on weekends or overtime but cannot ask whether employees observe specific religious holidays.
  • Not automatically deny positions to applicants who cannot work the required/preferred hours because of their religious beliefs – employers must consider alternatives and engage in an interactive process.
  • Use various methods of recruiting.
    • Adopting recruitment practices, such as word-of-mouth recruitment, that have the purpose or effect of discriminating based on religion can violate Title VII and state and local laws.
    • Advertising on church or other religious bulletins could have the effect of discriminating against other religions, especially if other recruitment channels are not used.
  • Establish written objective criteria for evaluating candidates and apply the criteria consistently.
  • Publish policies prohibiting religious discrimination and providing that the company accommodate religious accommodation requests from applicants and employees.


*Anisha Mehta, a summer associate, assisted in the preparation of this blog posting.

by Peter M. Panken

The Seventh Circuit Court of Appeals recently held, in a case of first impression, that a manager who was not the actual decision-maker in an employee’s discharge could still be held personally liable under Section 1981 of the Civil Rights Act of 1866 under a “cat’s paw” theory of liability.

In Smith v. Bray, Darrel Smith claimed that he had been subjected to racial harassment by his immediate supervisor, James Bianchetta, and that he was fired because he reported this harassment to a human resources manager, Denise Bray.  The employer’s liability was discharged after it went bankrupt, but Smith had also sued Bianchetta and Bray individually for their roles in his termination. Bianchetta settled privately, and the District Court found that Bray had no liability and granted her motion for summary judgment. While the Seventh Circuit affirmed, it did so under a different rationale, endorsing the “cat’s paw” theory of liability for individuals who, with an unlawful motive, persuade the decision-maker to terminate an employee—but ultimately finding insufficient evidence against Bray under this theory.

As Judge Posner of the Seventh Circuit explained:

In the fable of the cat’s paw (a fable offensive to cats and cat lovers, be it noted), a monkey who wants chestnuts that are roasting in a fire persuades an intellectually challenged cat to fetch the chestnuts from the fire for the monkey, and the cat does so but in the process burns its paw. In employment discrimination law the “cat’s paw” metaphor refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action.

The “cat’s paw” doctrine can be thought of as an application of the “motivating factor” doctrine; the monkey’s malevolent intent is imputed to the employer. So if the employer can’t show that the monkey’s supervisor, who did the actual firing (or took some other adverse employment action), had a lawful motive uncontaminated by the monkey that would have led the supervisor to fire the employee even without the monkey’s interference, the employee is entitled to damages.

The Court found that Bray’s liability depended on whether she specifically had a retaliatory animus in her role as the human resources professional who recommended to Smith’s second-level manager that he be discharged. The Court noted that “to meet the causation or motive requirement, Smith must show” by admissible evidence that an unlawful motive was a ‘substantial or motivating factor’ in [Bray’s] decision to recommend his termination.”

The Court emphasized that the plaintiff has the burden of proving that each individual accused of liability under Section 1981 has an unlawful motive. The Court recognized the “interrelationship and interdependency” between human resources officials and supervisors. Thus, human resources specialists will not automatically be liable for their involvement in such controversies, but they may be more vulnerable to suit as a result of this decision.

How Should Employers Respond?

Employers should establish training and resources to make all employees aware that they can be held individually liable for causing another employee to be terminated based on discriminatory intent. While employers can try to reduce the possibility of improper terminations through independent investigations of claims before taking adverse employment actions, such independent investigations may not fully insulate the employer and its employees from liability.

The Supreme Court in Staub v. Proctor Hospital  held that an independent investigation by the final decision-maker  will not extinguish liability for the entity. Unless the adverse employment action is fully justified, if the final decision-maker takes into account the biased supervisor’s (or human resources specialist) recommendation, both the decision-maker and the biased employees can be held liable. Unfortunately, courts have not been clear on what a sufficient independent investigation entails to shield the employer from liability.

The lesson for Human Resources officials, who deal with these problems every day, is to be sure that the adverse employment action is appropriate and not solely based upon the recommendation of a supervisor who has been accused of illegal discrimination. The red flag should go up when an accused supervisor recommends adverse employment action, and the Human Resource official would be wise to independently verify the grounds for the adverse employment action.

by Christina J. Fletcher

As further evidence of the Equal Employment Opportunity Commission’s (“EEOC”) focus on “caregiver” discrimination, the EEOC has signaled its strong support for protecting working women from discrimination based on lactation or breastfeeding in a case now pending before the U.S. Court of Appeals for the Fifth Circuit.

The EEOC maintains that discriminating against a woman for lactation or breast pumping is prohibited sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) as amended by the Pregnancy Discrimination Act (“PDA”).  For example, in EEOC v. Houston Funding II Ltd. et al., the EEOC filed suit on behalf of an employee who allegedly was terminated after she asked her employer if she could use a breast pump to express milk in the workplace when she returned from maternity leave.  The district court granted summary judgment for the employer, holding that Title VII does not cover lactation and breast pumping because “pregnancy, childbirth and related medical conditions,” which are covered by Title VII pursuant to the PDA, ended on the day of birth.  In the view of the district court, firing an employee because of lactation or breast pumping after childbirth is not sex discrimination under Title VII.  Thus, even if the EEOC could prove the employee was terminated for her request to use a breast pump at work, she had no claim under Title VII as amended by the PDA.

The EEOC vehemently disagrees with the position taken by the district court and has appealed the decision to the Fifth Circuit.  The EEOC argues that “lactation discrimination” violates the PDA because lactation is a medical condition related to pregnancy.  Separately, the EEOC maintains that disparate treatment on the basis of breastfeeding, an inherently female function, constitutes “the essence of sex discrimination” under Title VII.  As stated in the EEOC’s appellate brief, “[l]actation is a female-specific function.  Thus, firing a female worker because she is lactating (i.e., producing and/or expressing breast milk) imposes a burden on that female worker that a comparable male employee simply could never suffer. That is the essence of sex discrimination.”

Interestingly, physicians and health experts, including the Texas Medical Association, have filed an amicus brief in support of the EEOC’s position that breastfeeding is protected under the PDA and Title VII.  The amicus brief noted that lactation itself is a medical condition caused by pregnancy and childbirth, and is thus a “related medical condition” under the statues.  The amicus brief further noted that nursing provides health benefits to both mother and infant.

It is too soon to tell either what the outcome of the EEOC’s appeal to the Fifth Circuit will be, or what the impact to employers may be from the EEOC’s focus on breastfeeding bias as part of its greater “caregiver discrimination” initiative.  For now, employers should keep this issue in mind with regard to women returning to work from maternity leave, review any related policies and procedures, and consider the suggestions outlined in the EEOC’s caregiver best practices guide.

Beyond the EEOC

While the EEOC is focused on prohibiting discrimination with regard to lactation, there are federal protections enforced by the U.S. Department of Labor that require employers to provide breaks for expressing milk in the workplace.  In 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require employers to provide non-exempt employees with “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.”  Employers are also “required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which can be used by employees to express breast milk.”

In addition to the federal protections afforded female workers who breastfeed, over 20 states have enacted laws protecting breastfeeding mothers.  For example, in New York, employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for women to do so.  Unlike federal law, New York’s law extends to exempt workers, as well as non-exempt employees.  New York’s law also protects lactating women from discrimination by barring employers from “discriminat[ing] in any way against an employee who chooses to express breast milk in  the  work place.”  N.Y. Labor Law § 206-c.   Employers should ensure that they are aware of, and in compliance with, the different state laws regarding breastfeeding that may apply to their workforce.