Before we answer the specific question, let’s delve into the more specific details of this hypothetical situation that came in to FELTG.
The agency’s dedicated lactation room fits all of OPM and EEOC’s guidance, and the agency has several back-up rooms to boot. However, the employee doesn’t want to use those rooms. She needs to pump frequently to keep up her supply. Each pumping session can take 30 minutes to an hour. Because pumping time is an unpaid break, she says it would be a hardship for her to take so much time away from her desk and have to make up that time later in the day.
The employee works in a private office, but it does not have a door. She wears nursing covers and takes other measures to ensure her pumping is done in private. However, coworkers have complained and the manager wants to direct her to use the lactation room for pumping and either take her laptop with her when she goes there or continue using breaks and making up the time later.
As far as the relevant information here, this hypothetical employee does not have a disability and therefore is not entitled to disability accommodation under Title VII.
Now on to the FELTG response.
The Pregnancy Discrimination Act has been interpreted by EEOC to give female employees the same freedom for lactation-related needs that employees have for other similarly limiting medical conditions. [Don’t miss Meghan Droste’s webinar Pregnancy in the Federal Workplace: Discrimination, Harassment, and Accommodation, which will be held on Thursday.]
There’s a Fifth Circuit decision (that is not binding on the federal government) that says the Pregnancy Discrimination Act amended Title VII to provide that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions . . . .” The court held that lactation is a “related medical condition” of pregnancy. See EEOC v. Houston Funding II, Ltd., No. 12-20220 (5th Cir. May 30, 2013).
Indeed, there is a body of case law about sex discrimination of pregnant/postpartum women, but that generally involves intentional discrimination cases (fired for taking time off for “maternity leave”, hostile environment based on comments about breastfeeding mothers, etc.). However, this doesn’t seem to be the issue in this hypothetical situation.
This is a general control-of-the-workplace situation, and management has the right to control the workplace.
If we were on staff we’d advise the agency to look into why the coworkers are complaining. Is it the noise? If so, they should consider how others in non-pumping situations would be treated. If an employee is playing music too loudly, of course, they can be instructed to turn it down or turn it off. If the pump is too loud, the employee could be given the same kind of instruction. If the noise can’t be reduced, is there a way to muffle it, perhaps by putting a door on the office, or using a white noise machine?
If not, and there is a valid reason for doing so, the employee can be given a direct order: “You can’t pump at your desk.” Management can direct the employee not to pump at her desk, but it can’t say: “You have to use the pumping room.” The law does not require lactating mothers to use a pumping room but rather requires employers to have a suitable private space (not a bathroom) for pumping available. That’s an important distinction.
Leave it up to the employee to select a suitable alternative: use the pump room, don’t pump, quit, take more time off, or something else. As we teach at FELTG, management should always have a bona fide reason for anything you do that involves an employee. Coworker complaints can be a valid bona fide reason.
Control the work space, not the pumping.
Have a question? Ask FELTG.
The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.
