What’s to be done with a police officer who has a baby, returns to work, and wishes to continue breastfeeding her baby? If you’re the Tuscaloosa Police Department (TPD), you might suddenly start giving her poor evaluations, refer to her behind her back with gendered slurs, or tell her could just patrol the streets without a bullet-proof vest if the assigned one could not be used while she was lactating. You might deny her the light-duty that she could have performed safely and which was offered to other officers with temporary limitations. You might make her life a living hell until she quits—and goes from working as an active-duty police officer to catch-as-catch-can work cleaning houses, taking photographs for friends, and teaching fitness classes. And if you did all these things, would you have committed actionable discrimination? A jury said yes, and the US Court of Appeals for the Eleventh Circuit, in Hicks v. City of Tuscaloosa, just affirmed the verdict. In its ruling, the appellate court joined a growing chorus of courts that seem to recognize the inextricable connection between pregnancy and lactation—and thus the need to protect lactating women against discrimination.
Gee Officer Hicks! You Want to Be a Cop and a New Mom?
Stephanie Hicks worked for the TPD first as a patrol officer and then as an investigator on a narcotics task force. Her captain for the latter assignment allowed her to work a particular type of fraud case when she became pregnant so that she could avoid working nights and weekends. Her direct supervisor, Teena Richardson, later admitted that it bothered her that Hicks was permitted to avoid on-call duty, but had previously given her a performance review stating that her work “exceeded expectations.” She told Hicks more than once that she should take only six weeks of leave after giving birth, but Hicks took the full twelve weeks of unpaid leave guaranteed to her by the federal Family and Medical Leave Act (FMLA), a law passed in 1993 that grants employees who work full-time for large-enough employers a block of unpaid leave for self-care due to illness or injury as well as pregnancy, childbirth, or new parenting.
While Hicks was out on leave, her captain was caught embezzling and replaced with Wayne Robertson. She went from the frying pan of infant care to the fire of a hostile work environment. Hicks was written up on her first day back from FMLA leave. She overheard Richardson talking to the new captain, who claimed that she would find a way to write Hicks up and get her out of here. Another officer heard Richardson say “that stupid c*** thinks she gets 12 weeks. I know for a fact she only gets six.”
In addition to the hostility Hicks was facing from Richardson, she was dealing with the challenges of navigating late-night work obligations with her need to pick her baby up from daycare. Captain Robertson asked her about not meeting with a drug informant at night and not attending a Saturday drug bust. (Hicks and the City testified to different versions of these events.) She explained the situation, which led Robertson to request that she be reassigned from the task force back to the patrol division. Hicks was also warned by another agent that Richardson had it out for her.
The order back to patrol occurred only eight days after Hicks returned from FMLA leave, and Robertson testified that he did not want it to look like she was transferred because of her pregnancy or leave. The prospect of returning to patrol raised a number of concerns: Hicks would lose her vehicle and weekends off, receive a pay cut, perform entirely different duties, and wear a ballistic vest all day again. After Hicks was reassigned, Richardson—the one who had called her names and threatened to get rid of her—wrote a letter outlining the reasons for the demotion. Among other criticisms, Richardson states that when officers went to her house to retrieve her vehicle, she did not come to the door. Her husband answered the door, instead, and said his wife was breastfeeding at the time and could not make an appearance.
Before going back on patrol, Hicks took some time off to deal with a diagnosis of postpartum depression. Meanwhile, the doctor wrote a letter recommending a light-duty assignment because the ballistic vest required for patrol officers was too restrictive on her lactating breasts and could lead to infections. When she returned from leave, she met with Chief Anderson, who said he did not believe breastfeeding was a condition that warranted alternative duty. He told her should could go without a vest or could wear a “specially fitted” one. He did tell her she could be assigned to a beat with access to lactation rooms and could get priority for two breastfeeding breaks per shift. Hicks thought it was too dangerous to go without a vest, and testified that the “specially fitted” ones were also dangerous because they left gaping holes. Hicks resigned that day and filed a discrimination lawsuit.
Pregnancy, Childbirth, Lactation, and Work
Is what happened to Officer Hicks discrimination?
The reproductive process can have many consequences for women, especially in the context of work. Women can suffer temporary disability, due to pregnancy and childbirth, which makes them unable to work. Depending on the nature, duration, and extent of the disability, they may require time off or a workplace accommodation. And, they may need the benefit of insurance coverage to cover medical costs or disability payments to compensate for lost wages due to temporary incapacity that is due to pregnancy or childbirth.
These work-related conflicts can arise not only during the nine months of pregnancy, or during the period of childbirth and recovery from it, but also at the outer edges of the reproductive process—on both ends. Conflicts may arise, for instance, when women are trying to access contraception to prevent pregnancy, or seeking infertility treatments to achieve it. And conflicts may arise when women are trying to juggle breastfeeding with the demands of work after a child is born, as Hicks sought to do.
All of these issues are unique to women, all have the known potential to trigger bias and adverse treatment, and all raise the specter of sex or pregnancy discrimination. In Hicks’s case, TPD’s treatment of her was found to violate more than one law.
Workplaces were not historically structured to accommodate reproduction, despite its essential role in human life. Reproduction is essential to the world, but women were not thought essential to the workplace. That began to change in the 1960s and 1970s, and Congress’s passage of the Pregnancy Discrimination Act of 1978 (“PDA”) began to force open workplace doors even to pregnant women. The PDA amended Title VII, the central federal anti-discrimination statute.
Prior to the enactment of the PDA, the Supreme Court, in General Electric v. Gilbert, had interpreted Title VII to exclude pregnancy discrimination from its protection. The PDA specifically overruled the ruling in that case, and made clear that Title VII’s ban on sex discrimination included discrimination on the basis of “pregnancy, childbirth, or related medical conditions.” The PDA, in a second clause, also guarantees that employers must treat pregnant workers at least as well as they treat comparably-disabled workers, with respect to leave, insurance benefits, and so on.
An issue raised in Hicks’s case, though, is whether lactation is covered by the first clause of the PDA as a “related medical condition” to pregnancy? The US Supreme Court has spoken on the scope of the first clause of the PDA only once, in International Union, UAW v. Johnson Controls (1987). There, the court considered the validity of a battery manufacturer’s policy of prohibiting fertile women from working in jobs involving lead exposure. The Court struck down the policy as a violation of the PDA. To reach that conclusion, the Court reasoned that the PDA prohibits discrimination on the basis of potential, as well as actual, pregnancy. Thus, screening out applicants based on whether they could become pregnant while in a job with potentially dangerous lead exposure was unlawful under the PDA. This ruling opened the door to considering whether other aspects of the reproductive process are also covered by the second clause.
Pregnant women may also benefit from the Family and Medical Leave Act of 1993, which guarantees twelve weeks per year of unpaid leave for self-care or new parenting to employees who work full-time for an employer with at least 50 employees. Because the FMLA provides only unpaid leave, its core protections relate to job security. The employer must keep the job open during the leave (subject to narrow exceptions) and cannot retaliate against an employee for making use of the available leave.
The Causes of Action Hicks Pursued—and Won
Hicks’s lawsuit claimed violations of the FMLA and the PDA.
First, she claimed that her demotion from narcotics to patrol was in retaliation for her taking of FMLA leave. The employer’s violation of this non-retaliation rule was surprisingly obvious. She had been warned by her direct supervisor not to take the full allotment of leave that the law provided (twelve weeks, unpaid, per twelve-month period). The same supervisor tried to convince her that she was only entitled to six weeks of leave, when the law clearly permitted her to take twelve. And the hostility to her leave was apparent from the moment she stepped back into the precinct. With perhaps a rare combination of direct and indirect evidence (the timing of the demotion just eight days after returning from leave), the jury had no trouble concluding that she had been unlawfully retaliated against by TPD, and the court of appeals found sufficient evidence to support the jury’s finding.
Hicks also pursued a claim of pregnancy discrimination. The first hurdle, which she cleared, was to prove that she was constructively discharged—in other words, that her working conditions were made so intolerable she had no choice but to quit. If that standard is met, then quitting is tantamount to being fired. The appellate court agreed with the jury that asking Hicks to patrol her beat without a ballistic vest created an intolerable situation.
The next step in her claim required her to convince the appellate court that discrimination on the basis of lactation is a violation of the PDA. This simple question has caused courts sometimes to stumble. A federal district judge in Texas, for example, held in EEOC v. Houston Funding, Inc., that lactation discrimination is not actionable under the PDA because lactation is not “related to” pregnancy. Thus, that court held, an employer did nothing wrong when it fired a woman who returned from maternity leave and asked whether she could use a back room to pump milk. The judge’s opinion concluded with a simple but sweeping conclusion: “Firing someone because of lactation or breast-pumping is not sex discrimination.”
That opinion was legally and scientifically ridiculous. Lactation is obviously related to pregnancy, as lactation is an involuntary, physiological response to giving birth. But it is legally absurd as well because it would permit employers to resurrect the very types of discrimination that Title VII and the PDA were designed to combat.
The Fifth Circuit vacated the lower court decision in Houston Funding, holding that “lactation is a related medical condition of pregnancy for purposes of the PDA. Lactation is the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth.”
The Eleventh Circuit cited the Fifth Circuit’s majority opinion with approval, joining a growing number of jurisdictions that seem to appreciate the inextricable link between pregnancy and lactation. It also cited language from an early PDA case from the US Supreme Court, CalFed v. Guerra, in which the Court noted that the “entire thrust” of the PDA was “to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life.” This legislative purpose meant that the Eleventh Circuit had “little trouble concluding that Congress intended the PDA to include physiological conditions post-pregnancy. The PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding—an important pregnancy-related physiological process.”
The court’s interpretation of the PDA’s first clause is important, but it did not fully resolve the issue for Hicks or many other breastfeeding, working mothers. The first clause protects against so-called status discrimination. An employer cannot fire a woman because she is pregnant, because she is lactating, because she is giving birth, and so on. But that does not mean that it must accommodate the physical effects of the reproductive process. In other words, if a woman suffers an employment action because of the simple fact that she is lactating, she can prove actionable discrimination under the PDA, citing Houston Funding or Hicks or other relevant precedents. But what if she is not penalized for the mere fact of lactating, but instead her employer denies her necessary accommodations to continue lactating such as regular breaks or a sanitary, private place to pump milk? In the Fifth Circuit case, the court did not have to reach that question because the plaintiff was fired simply for raising the possibility that she might ask for such an accommodation. Indeed, the famously conservative Edith Jones wrote separately to emphasize that the plaintiff could not have prevailed if her complaint was that she was denied “special facilities or down time during work to pump or ‘express’ breast milk.”
The Hicks court, however, could not avoid the question whether the denial of a necessary accommodation to a lactating woman violates the PDA as well. Hicks’s employment situation was made intolerable because she was being forced to work patrol without a proper ballistic vest—and denied a light-duty accommodation that would have permitted her to continue working safely and continue breastfeeding her baby. This claim is not covered by the first clause of the PDA, which has been understood to protect only status discrimination, but is covered by the second clause.
In the Hicks case, the Eleventh Circuit repeated the familiar phrase that the PDA does not require employers to provide special accommodations to breastfeeding workers. But it does require employers to provide them the same accommodations that it provides to other workers with comparable limitations, per the second clause of the statute. Hicks, then, raised a claim that “straddled” the first and second clauses.
The scope and meaning of the second clause was considered in a recent Supreme Court case. In Young v. United Parcel Service, Inc., the Court held that the denial of an otherwise available accommodation to a pregnant woman is prima facie evidence of discrimination, which can be overcome only by the employer’s showing a legitimate, non-discriminatory reason for differential treatment, which cannot be rooted in cost or convenience. (This ruling and its aftermath are explored here, here, and here). Hicks was not asking for special treatment; she was simply seeking an accommodation (light duty) that the TPD made available to others with temporary, physical limitations. The department’s failure to grant her the same accommodation is what led to her constructive discharge, and its failure to explain it in non-discriminatory terms is what led to its liability for pregnancy discrimination.
Earlier in this column, I spent some time providing a detailed account of the facts alleged and proven in this case. I did this because they, like so many other pregnancy discrimination incidents, leave me with a simple question: Why do employers work so hard to deny minor and costless accommodations to female employees they have worked hard to recruit and train? This entire case could have been prevented if Stephanie Hicks had been wished well as she took her twelve weeks of leave that the law guarantees—hardly a windfall given that it is unpaid—and welcomed her back when she returned, with perhaps a modicum of understanding about the challenges of re-entry to a demanding job after an intense physical and emotional experience. But instead, she was treated with hostility at every turn and had to resort to a jury of her peers to vindicate her rights. Can’t we do better?