Judge Backs Firing of Houston Breastpumping Worker

A woman in Houston says she lost her job after she asked to breastpump.

February 08, 2012, 8:36 AM

Feb. 8, 2012 — -- A judge in Houston has ruled in favor of an employer who allegedly fired a woman who wanted to use the bathroom to breast-pump.

The Equal Employment Opportunity Commission filed a complaint on behalf of Donnicia Venters against debt collection agency Houston Funding. Donnicia Venters, 30, alleges the company violated Title VII of the Civil Rights Act of 1964, which makes it illegal to discriminate against a woman "because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth."

Judge Lynn Hughes found that the EEOC's claim in the lawsuit was not recognized under Title VII and dismissed the lawsuit last week, writing in the opinion, "firing someone because of lactation or breast-pumping is not sex discrimination."

Venters said she was "shocked" by the judge's opinion and hopes the EEOC appeals the judgment to obtain "justice."

"I just hope no other employer does that," she said. "It's just milk. It's actually a great thing to do. I just hope it can be an easy thing to talk to your employer about for your child."

Joan Williams, law professor and director of the Center for Work Life Law at the University of California, Hastings, said, it "makes no sense at all" to say lactation is not a medical condition related to pregnancy or childbirth.

"Everybody knows that breastfeeding is a medical condition related to childbirth," Williams said.

First, Williams said, pediatricians have long recommended women should breast feed babies for a certain time after birth to help transmit a mother's immunity system.

Second, if mothers can't pump or nurse, they are at risk of mastitis, a breast infection which can be "extremely painful" and sharply spike temperatures, she said.

"How is that not a condition related to pregnancy and childbirth? Have you ever known a woman who was nursing who did not have a child?" Williams said.

A growing chorus of breastfeeding women have advocated for accommodations to nurse, including a group of women who staged a "nurse-in" at Facebook's headquarters in Menlo Park, Calif. this week for flagging nursing photos as inappropriate.

The EEOC is scheduled to host a hearing about pregnancy discrimination on Feb. 15 in Washington, D.C., in which Williams is testifying.

Tim Bowne, EEOC trial attorney, said the EEOC is evaluating its options, including its right to appeal the case.

Venters went on maternity leave Dec. 1, 2008 pursuant to the company's policy of permitting employees to take open-ended leave for surgeries or other medical issues. She said she "consistently" kept in touch with management to assure them she would be returning to work. While on leave, Venters, who joined the company in March 2006 as an account representative, said the company president promised to save a spot for her until her return.

After she gave birth to a baby girl on Dec. 11, she called the president in February 2009 to schedule her return to work and asked if it would be okay to for her to use a back room to breast pump.

The suit claims "while [the president] had been friendly at the beginning of the call, he paused for several seconds after she mentioned the breast pump, and then stated, 'well, we filled your spot.'"

The suit states the floor manager relayed to the president that Venters was contemplating bringing a breast pump to the office. According to the claim, the president responded to the floor manager, "No. Maybe she needs to stay home longer."

Venters asked what he meant by telling her that her spot had been filled, and he stated "well, we thought you were not coming back."

Venters said she asked how that could be the case when she had discussed with her floor manager and a human resources representative her intent to return. Venters asked the president to tell her the alleged date of her termination, who then asked Venters to call back, according to the court filing.

Over a week later, around Feb. 26, 2009, the suit states Venters received by certified mail a termination letter dated Feb. 16, 2009, which claimed that Houston Funding had "terminated [her] employment due to job abandonment effective February 13, 2009."

"He didn't give me the option to work it out," said Venters, explaining that she would have been willing to pump at home because she lived down the street from the office. "I probably couldn't have done it as often as I needed to, but if he would have just told me 'no,' I would have found different ways to do it."

Texas and Alaska have pregnancy discrimination laws that require certain public employers to provide some accommodations for pregnant workers to keep their jobs. California, Connecticut, Illinois, Louisiana, Minnesota, New Hampshire and Michigan, have passed laws requiring private employers to provide at least some accommodations. Legislators in New York introduced a bill last week related to the issue.

Judge Hughes wrote: "Even if the company's claim that she was fired for abandonment is meant to hide the real reason - she wanted to pump breast-milk - lactation is not pregnancy, childbirth, or a related medical condition."

"The law does not punish lactation discrimination," the three-page opinion states.

Houston Funding denies it discriminated, according to Mark Oberti, attorney for the company.

"The judge's ruling is consistent with other courts' rulings on this same issue," the company said in a statement. "Finally, Houston Funding notes that, in 2010, after the events relevant to this lawsuit occurred, President Obama signed into law protections for women who desire to breast-pump in the workplace. Houston Funding complies with both the letter and the spirit of that law, and all other applicable laws."

President Obama's healthcare bill gives women rights to pump.

"This case involves someone who just wanted to use a backroom to pump milk," Williams said. "She wasn't asking for a lot."

Bowne said that even if the company did not believe she was going to return, which the EEOC disputes, there is evidence that Venters was a "good and hardworking employee."

"Had they not been motivated by her pregnancy, childbirth or related conditions, they could have had a spot for her," he said. "There is no reason to believe they would have legitimately preferred someone off the street rather than someone with a proven track record like Donnicia had."

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