Appeals Court Holds That Breastfeeding Is "Related To Pregnancy" (Or Why My Four-Year-Old Understands Basic Biology Better Than Some Judges)
By Galen Sherwin, Senior Staff Attorney, ACLU Women’s Rights Project
When Donnicia Venters disclosed to her manager as she was preparing to return to work after her maternity leave that she was breastfeeding and would need a place to pump breast milk, she was met with silence. And then told that her “spot ha[d] been filled.”
When the Equal Employment Opportunities Commission tried to sue on her behalf, a federal district court judge dismissed her case, on the ground that firing someone because she is breastfeeding is not sex discrimination. This is despite clear language in federal anti-discrimination law prohibiting employers from discriminating against workers based on “pregnancy, childbirth, or related medical conditions.” The judge’s reasoning: lactation was not a “condition related to pregnancy and childbirth” because once the plaintiff had her baby, “she was no longer pregnant and her pregnancy-related conditions ended.”
Seriously? Let my four-year-old daughter break it down for you: “When babies come out of their mommies’ tummies, they are too little to eat food—that’s why their mommies make them milk.” And how do mommies make milk? “They have superpowers.” (Well, yes, actually, something like that).
Thankfully, the Court of Appeals for the Fifth Circuit just reversed the dismissal of Venters’ case. With help from the Texas Medical Association, which filed an amicus brief/biology lesson explaining the relationship between pregnancy and breastfeeding, the court recognized that firing someone for breastfeeding is indeed a form of sex discrimination.
Venters’ case is not atypical. Despite the overwhelming public health justifications for breastfeeding, women who want to continue nursing when they return to paid work often face obstacles that force them to choose between their jobs and what they think is best for their babies. While some employers are understanding and flexible, too many just don’t want to deal with the hassle, or think new mothers will be less committed to their work, or express the view that they should be staying home with their babies, where they belong.
These types of stereotypes are exactly what our antidiscrimination laws are designed to prevent. It is sex discrimination to fire someone because they’re breastfeeding for the same reasons it is sex discrimination to fire someone because they’re pregnant: it reflects the antiquated view that motherhood is incompatible with workforce participation.
At a fundamental level, workplace policies that are structured around an “ideal” worker who never gets pregnant, gives birth, or breastfeeds – in other words, a male worker – look an awful lot like institutionalized sexism. It may take some serious “superpowers” to dismantle them. In the meanwhile, at least the courts are finally starting to get it right where discrimination against nursing mothers is concerned.