By Erin L. Kilgore

“Pumping,” or expressing breast milk, is now protected under Title VII. In a matter of first impression, the Fifth Circuit Court of Appeal recently held that an adverse employment action taken against a female employee because she was expressing milk constituted sex discrimination in violation of Title VII. See Equal Employment Opportunity Commission v. Houston Funding II, Limited, — F.3d —, 2013 WL 2360114 (5th Cir. 2013).

The EEOC brought the action on behalf of a former employee against her former employer, alleging she had been unlawfully discharged because she wanted to pump at work. The defendant argued that Title VII does not cover “breast pump discrimination.” The Fifth Circuit resolved the dispute by holding that an employer’s adverse employment action against a female employee because she is lactating or expressing milk constitutes sex discrimination in violation of Title VII. The court reasoned that an “adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not – indeed, could not – suffer.” In addition, the Fifth Circuit held that lactation is a related medical condition of pregnancy for purposes of the Pregnancy Discrimination Act of 1978.

As noted in a concurring opinion, neither Title VII nor the Pregnancy Discrimination Act mandates special accommodations to women – such as special facilities or break time during work to pump. However, employers should read this decision in tandem with the 2010 Patient Protection and Affordable Care Act’s amendment to the Fair Labor Standards Act, which requires certain covered employers to provide nursing women with breaks to express breast milk. Under that provision, covered employers must provide employees covered by the FLSA’s overtime provisions a “reasonable” break each time she has a need to express milk. The employer is not required to compensate the employee for such breaks. In addition, the employer must provide a place – other than a bathroom – that is private and free from intrusion from co-workers and the public.