Agency Blatantly Fails to Accommodate Breastfeeding Employee

By Deborah J. Hopkins, August 19, 2024

Quick facts:

• The EEOC ruled for the employee, after the agency failed to provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility.
• The employee was told to go home so she could express milk, and was subsequently charged LWOP.
• Since this complaint was filed, new laws have only strengthened protections for pregnant and lactating employees.

People around the country cheered at the end of 2022 when the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) went into effect, and they cheered last summer when the Pregnant Workers Fairness Act (PWFA) went into effect. These laws require employers – including Federal agencies – to, among other things:

• Provide adequate break times and a private (non-bathroom) space for employees to express and store breastmilk during the workday, and
• Accommodate the limitations of employees related to pregnancy, childbirth, and other related medical conditions – unless doing so would cause an undue hardship on the employer’s operations.

While these laws did not become effective until recently, certain workplace protections for pregnant and lactating employees have long existed in the Federal government: the Pregnancy Discrimination Act, which went into effect in 1973, as well as Title VII of the Civil Rights Act of 1964.

A fairly recent EEOC case explored an allegation of pregnancy-related discrimination against a USPS employee, before the PUMP Act and PWFA went into effect: Krysten D. v. USPS, EEOC App. No. 2021005238 (Feb. 8, 2023).

Here’s what happened: After the birth of the complainant’s first child, management designated her an office for use as a lactation room. For privacy, management covered the window with paper and provided a small refrigerator where the complainant could store the milk during the workday. After the birth of her second child, the complainant initially used the same office to express breastmilk approximately every two hours.

So far, so good.

And then things changed. At one point during a shift, the complainant went to the lactation room and found it was locked. She requested management unlock the door, but management told her the keys were not available. After nearly three hours, the complainant was told to go home because there was nowhere else for her to express milk, and her pain had “become unbearable.” Id at 2. Because of the distance from her workplace to home (over 30 minutes) and the short amount of time remaining in her shift, the complainant stayed home after she expressed the milk. Her manager then charged her 4 hours and 9 minutes of LWOP.

A few other relevant details:

• A year prior to this event, the complainant informed the agency of her concerns about being able to access the lactation room.
• If the room was left unlocked, coworkers used the room for non-lactation related activities (breaks, lunch, etc.) and left the room dirty, which forced the complainant to sanitize the room every time she needed to use it.
• On one occasion, the complainant went to the lactation room to express milk and found three individuals inside attending a training on a TV, which was plugged into the only outlet.
• If the room was locked when not in use, the key was possessed by only one person, who worked a different shift than the complainant.
• The complainant requested a copy of the key so she could access the room during her shift. Management refused because it was a master key. The complainant then offered to pay for a new lock on the door and management refused.

As a result of all these events, the complainant filed a sex discrimination claim (pregnancy-related condition), alleging she was not provided with a proper place for lactation.

The law on this is clear: A complainant alleging that the denial of an accommodation for a pregnancy-related condition constituted disparate treatment sex discrimination may state a prima facie case by showing that:

1. She belongs to the protected class;
2. She sought accommodation;
3. The agency did not accommodate her; and
4. That the agency did accommodate others “similar in their ability or inability to work.”

Young v. UPS, 575 U.S. 206 (2015), req. for recon. denied, EEOC Request No. 2019002792 (Jun. 25, 2019).

The agency may justify its failure to accommodate if it can show a legitimate, nondiscriminatory reason for denying accommodation. Id. at 229. According to the McDonnell-Douglas framework, the complainant must demonstrate pretext in order to prevail in her claim.

In reviewing the case, the EEOC found the agency could not provide a legitimate, nondiscriminatory reason for denying the complainant access to a clean lactation facility. Therefore, the complainant proved her claim of discrimination. As is often the case, the decision was issued long after the harm occurred.

Fortunately, cases like these don’t come up too often. However, agencies should still take note, especially since pregnant and lactating employees now have even more protections than they did just a couple of years ago. [email protected]

Related training:

•  September 5: Everything You Need to Know About the Pregnant Workers Fairness Act
•  September 16-20: EEOC Law Week