With the passage of the Affordable Care Act (ACA), federal law required employers with more than 50 employees to provide breastfeeding employees a private location, other than a toilet stall, where they can express breast milk in privacy. And, of course, the Pregnancy Discrimination Act (PDA) has prohibited discrimination “on the basis of pregnancy, childbirth, or related medical conditions” since 1978. Despite those laws, court cases explaining employers’ duties to accommodate breastfeeding employees have been few and far between. In Hicks v. City of Tuscaloosa, Alabama, the U.S. 11th Circuit Court of Appeals provided guidance about employers’ responsibilities to breastfeeding employees.
Facts
Stephanie Hicks began working for the Tuscaloosa Police Department as a patrol officer. She was later promoted to a narcotics task force investigator, the position she held when she became pregnant. Her captain allowed her to work pharmaceutical fraud cases during her pregnancy, which meant she could avoid working nights and weekends. Hicks’ direct supervisor, Lieutenant Teena Richardson, admitted that it “bothered her” that Hicks did not have to work nights and weekends.
During Hicks’ pregnancy, Richardson told her multiple times that she should take only six weeks of leave under the Family and Medical Leave Act (FMLA). Instead, Hicks took the full 12 weeks of FMLA leave to which she was entitled.
Hicks received a write-up on her first day back at work from maternity leave, even though she had “exceeded expectations” on a performance review prior to her leave. She overheard Richardson call her a “bitch” to a captain and claim she would “find a way to write Hicks up and get her out of here.”
Hicks was assigned to work with several confidential informants. There was a dispute over whether she did so. The police department claimed she met with only one informant, while Hicks claimed she worked with many of the informants and was not introduced to the rest. Eight days after Hicks returned from leave, she was demoted to the patrol division.
Critical to the case, Hicks’ transfer to the patrol division meant she would be required to wear a ballistic vest. Her doctor wrote a letter to the police department recommending that she be considered for alternative duties since the vest was too restrictive and could cause breast infections because of her breastfeeding. Accordingly, Hicks requested a desk job in which she would not need to wear a ballistic vest. The police department refused because it did not believe breastfeeding warranted alternative duties. Hicks was given only two options: (1) not wearing a vest at all or (2) wearing a “specially fitted” vest that would leave gaping, dangerous holes. Hicks resigned the same day she was presented with those options.
Hicks filed a lawsuit asserting pregnancy discrimination, constructive discharge, and FMLA retaliation claims. At trial, a jury found in her favor and awarded her $374,000 (although the award was later reduced). The police department appealed the verdict to the 11th Circuit.
Breastfeeding employees can be entitled to accommodations
The 11th Circuit easily found that Hicks presented sufficient evidence to support the jury’s verdict that her reassignment to the patrol division was both discriminatory (based on her pregnancy) and retaliatory (based on her FMLA leave). The court engaged in a discussion regarding her constructive discharge claim. A constructive discharge occurs when an employer makes work conditions so intolerable that a reasonable person would feel compelled to resign. Hicks argued to the jury that the dangerous choices she was given—either not wear a ballistic vest or wear an ill-fitting one—left her no choice but to resign. The police department argued that the offered accommodations should have been sufficient.
The 11th Circuit upheld the jury’s verdict. The PDA prohibits discrimination “on the basis of pregnancy, childbirth, or related medical conditions,” and breastfeeding is included as a “related medical condition.” Despite that protection, the court took pains to explain that the PDA does not obligate employers to provide “special accommodations” to breastfeeding employees. However, the police department refused to offer Hicks accommodations it had offered to nonbreastfeeding employees, and that was discrimination. Hicks did not ask for “special” treatment. The court stated, “She was asking to be treated the same as ‘other persons not so affected but similar in their ability or inability to work’ as required by the PDA.”
Bottom line
Employers have changed their policies to provide private locations and breaks to breastfeeding employees. But employers must remember that is not their only obligation. If an employee’s breastfeeding prevents her from performing some of her job duties, employers must consider providing accommodations to the same extent they offer accommodations to nonbreastfeeding employees. In Hicks’ case, the police department was held liable because she was able to show that nonbreastfeeding employees were given “alternative duty” and that she was denied alternative duty.
This case expands on the changes to pregnancy accommodations that came with the U.S. Supreme Court’s Young v. United Parcel Service decision in 2015. As the 11th Circuit explained, the key to providing pregnant and breastfeeding workers accommodations is giving them special, treatment.
Rozlyn M. Fulgoni-Britton is an attorney with Faegre Baker Daniels LLP, practicing in the firm’s Inidanapolis, Indiana, office. She may be contacted at rozlyn.fulgoni- britton@faegrebd.com.