The U.S. Fifth Circuit Court of Appeals in New Orleans recently addressed a case in which the employee alleged violations of Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (PDA). The dispute arose when the employee claimed she was given insufficient break time to express breast milk following the birth of her child.
To make up for the extra break time taken to express milk, she was required to either use paid leave, take unpaid time off, or extend her shift. The case took nine years to wind its way through the administrative system and court process but was quickly resolved by the Fifth Circuit in a succinct opinion offering guidance about how far employers must go to accommodate breastfeeding employees.
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Accommodation request ends in dispute
A border patrol agent with the U.S. Department of Homeland Security (DHS) elected to breastfeed her newborn child. After the birth, she returned to her job as a full-time agent. Agents are allowed 70 minutes of paid break and meal time per shift (30 minutes for lunch and two 20-minute breaks). The employee took breaks during her shift to use the private, secure location provided for her to express breast milk and to clean and store her pump. She eventually told management that she needed breaks of at least 30 minutes every three to four hours. Management informed her it would accommodate her request but that she would have to either take leave or extend her shift to make up for the additional time away from her post.
The employee filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming discrimination and retaliation under Title VII and the Pregnancy Discrimination Act. An administrative law judge found in the employee’s favor, and the Office of Federal Regulations upheld the decision. The DHS was ordered to restore her leave time and pay her $10,000 in compensatory damages.
The employee was dissatisfied with the amount awarded and filed a lawsuit in federal court alleging gender discrimination, retaliation, disparate treatment, and hostile work environment under Title VII and the Pregnancy Discrimination Act. She asked for a variety of remedies, including $300,000 in compensatory damages or, alternatively, $3 million in punitive damages. The DHS asked the trial court to dismiss the case, and the court complied. The employee appealed the decision to the Fifth Circuit.
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No evidence of unequal treatment
The Fifth Circuit first observed that Title VII prohibits employers from discriminating against an employee with respect to compensation or terms, conditions, or privileges of employment because of her sex. The PDA amended Title VII to include discrimination based on pregnancy and related medical conditions. Specifically, Title VII was amended to note that discrimination “because of sex” includes, but is not limited to, discrimination because of pregnancy, childbirth, or related medical conditions. The amendment also states that women affected by pregnancy, childbirth, or related medical conditions are to be treated the same for all employment-related purposes as other employees who are not affected by similar conditions in their ability or inability to work.
The employee alleged in her lawsuit that all agents received 70 minutes of paid break time per shift. She also claimed that supervisors closely monitored her breaks after she started using them to express breast milk while ignoring breaks taken by male employees to smoke. She asked the DHS to allow her two 30-minute periods to express breast milk while on duty without having to take leave. But according to her, the DHS required her to use leave, take leave without pay, or extend her workday to make up the time.
The court observed that what the employee didn’t allege in her lawsuit was as important as what she did allege. Specifically, she didn’t allege that the DHS took away her 70 paid minutes of break time that all agents received or that she was prohibited from using that time to express breast milk. Boiling down her allegations to their essence, the court observed that the employee “asked for a benefit different from that which every other . . . [agent] received.” The court concluded that Title VII and the PDA do not impose an affirmative obligation on employers to grant preferential treatment.
Preferential treatment not required
The Fifth Circuit then addressed the employee’s retaliation claim. She alleged she engaged in protected activity when she requested an accommodation to express breast milk while on duty and that the DHS retaliated against her by requiring her to take unpaid leave or extend her shift to make up for the additional time taken. The court considered whether there was any causal connection between the alleged protected activity and the supposedly adverse employment action. In doing so, it explained that an adverse employment action is one that a reasonable employee would find significantly adverse and would be dissuaded from pursuing a discrimination charge as a result.
The court concluded there was no evidence of an adverse employment action, which is essential for a retaliation claim. Testimony from supervisors showed that the employee was never denied the opportunity to express breast milk during the allotted paid breaks. In fact, the evidence showed that the DHS required her to take unpaid leave or extend her shift only for additional time taken beyond the paid breaks available to all agents.
The employee referred to an undated and unsworn statement in which she alleged she “lost both breaks and lunch,” but the court found the statement too vague to directly refute the specific evidence offered by the DHS. The court concluded that denial of preferential treatment cannot support a retaliation claim under Title VII or the PDA, and the trial court’s decision was affirmed. Puente v. Ridge, No. 08-40282, U.S. Fifth Circuit Court of Appeals (May 12, 2009).
Title VII and the Pregnancy Discrimination Act, like other discrimination laws, require equal, not preferential, treatment. The employee in this case didn’t allege that the employer denied her any benefit available to other employees and conceded that she received the same breaks they did. As the court noted, there is no affirmative obligation under either law to give employees better terms or conditions of employment.
Refusing an employee’s request for a reasonable accommodation for a pregnancy- or childbirth-related condition might be used as evidence of discriminatory motive, but in this case, the DHS provided the employee a private and secure location to breastfeed and store her equipment. The Fifth Circuit’s decision reinforces what we already knew: Employers are not required under Title VII and the PDA to give in to employees’ unreasonable or unfair demands.