Discrimination Related to Breastfeeding May Violate Title VII

In EEOC v. Vamco Sheet Metals Inc, the Southern District of New York held that plaintiff – a proposed intervenor in a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) – may state a claim for discrimination under Title VII where she was allegedly harassed for breastfeeding her baby.

From the decision:

Title VII encompasses the Pregnancy Discrimination Act of 1978, enacted by Congress to ensure that Title VII sex discrimination claims include discrimination based on pregnancy, child birth, or related medical conditions. 42 U.S.C. § 2000e-(k). Vamco points to a previous case in this district that dismissed a Title VII claim brought by a breastfeeding mother alleging “sex-plus” discrimination. Martinez v. NBC, Inc., 49 F.Supp.2d 305, 308–10 (S.D.N.Y.1999). Sex-plus discrimination occurs when one gender experiences disparate treatment when considered in conjunction with a secondary characteristic shared by both genders. The court in that case found that because men cannot lactate, there is no shared “plus” characteristic. Id. (“The drawing of distinctions among persons of one gender on the basis of criteria that are immaterial to the other, while in given cases perhaps deplorable, is not the sort of behavior covered by Title VII.”). Vamco claims that this forecloses any Title VII claim based on Ms. DeMicco’s breastfeeding. (Def. Memo. at 11).

However, a recent Fifth Circuit case expressly held that adverse employment action against a female employee because she was expressing milk violates Title VII. EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428–30 (5th Cir.2013); see also Falk v. City of Glendale, No. 12 Civ. 925, 2012 WL 2390556, at *4 (D.Colo. June 25, 2012) (theorizing that Title VII could support lactation-related claims “if other coworkers were allowed to take breaks to use the restroom while lactating mothers were banned from pumping”). In particular, the Fifth Circuit held that “lactation is a related medical condition of pregnancy for purposes of the PDA,” based on the plain meaning of the statute’s text. Id. The Fifth Circuit distinguished Martinez as holding that pregnancy and related medical conditions are not “disabilities” that require accommodation for purposes of the Americans with Disabilities Act, and failing to address whether lactation is a medical condition protected under the PDA. 717 F.3d at 429 n. 6. Where a plaintiff’s claim focuses on adverse employment actions or conditions relating to her lactation breaks, as opposed to an alleged failure to accommodate a disability, an employer may be liable under Title VII.1 Id.


In the Proposed Complaint, Ms. DeMicco alleges that she was harassed for taking lactation breaks and eventually terminated. (Prop.Compl., ¶ 73). Therefore, it appears that Ms. DeMicco may be able to state a claim for disparate treatment under Title VII based on discrimination in connection with her attempts to continue breastfeeding her infant.

The court, however, declined to allow plaintiff to press her claim under  Section 207(r) of the FLSA (since she did not allege any lost compensation resulting from defendant’s conduct) or Section 206-c of the New York Labor Law (as the question of whether there is a private right of action under that statute is unsettled under New York law).

Share This: