Given the horrible decision we reported on a couple of weeks ago, in which a district court shockingly ruled that termination because of menstruation was not unlawful discrimination, we thought it would be nice to report on a court that is getting things right. A little antidote to the negative on this sunny Friday morning. Specifically, the 11th Circuit Court of Appeals recently ruled that lactation is a pregnancy related medical condition and that discrimination based on breastfeeding amounts to a violation of the Pregnancy Discrimination Act.
In Hicks v. the City of Tuscaloosa, a jury ruled in favor of a former police officer who had been forced to resign shortly after returning from maternity leave. The facts of the case are just awful. Stephanie Hicks had been a narcotics investigator on a special task force before becoming pregnant. Her supervisor repeatedly told her that she should only take six weeks of maternity leave. Another officer overheard the supervisor talking loudly about Ms. Hicks, stating “that stupid c*** thinks she gets twelve weeks” but “I know for a fact she only gets six.” Despite this hostility, Ms. Hicks knew her rights and took the full twelve weeks of leave she was allotted under the Family & Medical Leave Act.
On Ms. Hicks first day back from that leave, her supervisor issued her an unjustified disciplinary write up. Ms. Hicks also overheard her supervisor referring to her as a “b****” and saying that she would find a way to write Ms. Hicks up and “get her out of here.” Just one week later, the Chief of Police transferred Ms. Hicks off of the narcotics task force and back to the patrol division where she was forced to walk a beat as a patrol officer – just as she had done when she was a new hire.
In addition to being an unjustified demotion, this new position created a health risk for Ms. Hicks. Tuscaloosa PD patrol officers are required to wear bullet-proof vests when they are on patrol. Ms. Hicks’ doctor submitted a medical note indicating that, because Ms. Hicks was breastfeeding, the incredibly restrictive bullet-proof vest could cause her breast infections and impede her ability to nurse her baby. As a result, Ms. Hicks asked to be reassigned to a desk job as an accommodation while she was still nursing.
The police department rejected that request and, instead, informed her that she could either 1) wear a “specially fitted” vest (which was really just a larger vest which left gaping holes and rendered the vest much less safe); or 2) conduct her patrol duties without a vest at all. Neither of these options was reasonable given that they both required Ms. Hicks to patrol without required safety equipment and, thus, resulted in a much more dangerous work environment. Given these ridiculous options, Ms. Hicks resigned that day.
She then filed suit against the City of Tuscaloosa and, unsurprisingly, the jury issued a verdict in her favor – holding that the police department had retaliated against her in violation of the FMLA and discriminated against her in violation of the Pregnancy Discrimination Act, unlawfully forcing her to resign her employment.
What is a surprise is that the City appealed that verdict, arguing that it had legitimate non-discriminatory and non-retaliatory reasons for its actions against Ms. Hicks and that she had not presented enough evidence in support of her claims. Thankfully, the 11th Circuit Court of Appeals easily dismissed those arguments, holding that Ms. Hicks had pointed to an abundance of evidence in support of her claims – including defamatory comments pertaining to her maternity leave and incredibly suspicious timing between her return from leave and her disciplinary write-up and demotion.
Additionally, the Appellate Court explained that lactation is a medical condition related to pregnancy and that, as a result, discrimination based on lactation or breastfeeding amounts to discrimination in violation of the Pregnancy Discrimination Act. This is a notion that we thought would not require particularly rigorous legal interpretation. However, in light of last month’s decision holding that excessive menstruation resulting from pre-menopause was not a medical condition related to pregnancy, it seems necessary to go ahead and applaud this court for getting the analysis right. Further, as the ACLU explained more fully here, other appellate courts across this country have previously ruled that breastfeeding was not pregnancy-related (and have cited some pretty ludicrous reasons in support of those decisions). That makes this decision even more notable.
So there you have it. Some positive employment law news for your Friday. The 11th Circuit Court of Appeals has properly confirmed that discrimination based on lactation violates federal anti-discrimination laws. Given that the awful menstruation decision we posted about in August has been appealed in the same circuit, we have every reason to expect a favorable outcome in that case too. We’ll keep you posted!
