For years, federal courts have held that pregnancy and sex discrimination laws do not require employers to affirmatively accommodate breastfeeding by employees. However, a recent line of cases has blurred this conclusion, finding that employers must accommodate breastfeeding when they have provided arguably similar measures for disabled employees. A new decision from the Eleventh Circuit Court of Appeals continues this trend.
In Hicks v. City of Tuscaloosa, the plaintiff was a police detective who alleged a variety of discriminatory and retaliatory measures following her return from maternity leave. Among her complaints, the plaintiff claimed that she was required to wear a restrictive bulletproof vest that caused infections that interfered with breastfeeding. She requested but was denied a temporary reassignment to a position that would not require wearing the vest at all times while on duty. A federal jury agreed, concluding that this measure constituted discrimination under the Pregnancy Discrimination Act (PDA).
On appeal, the Eleventh Circuit agreed, affirming the verdict. In regards to the accommodation claim the court noted that in general, employers are not required to accommodate breastfeeding needs. However, in this case, the plaintiff provided evidence that the police department had accommodated officers with disabilities by providing temporary reassignment. Therefore, the employer had discriminated against the plaintiff by refusing to provide a similar accommodation in this situation.
The court noted that there is a fine line between accommodation and discrimination under the PDA. In future litigation, plaintiffs are likely to rely on this case by pleading breastfeeding failure-to-accommodate claims as discrimination ones. By pointing to another situation where an employee was accommodated for non-maternity reasons, the employee requesting accommodation can avoid dismissal based on the pure accommodation issue.