On September 7, 2017, the Atlanta-based court became the second federal appeals court, joining the Fifth Circuit, to recognize breast feeding as covered under Title VII of the 1964 Civil Rights Act.
An Alabama police officer returned to work after giving birth to her child when she was denied a desk job to avoid wearing a ballistic vest that may potentially render her unable to breastfeed. Stephanie Hicks presented sufficient evidence that after her doctor determined the standard bullet proof vest could cause infections and compromise her ability to breastfeed, she was faced with a choice between walking a beat with no bullet proof vest or a specially fitted one. Although the specially fitted vest posed no threat to Hicks’ breast-feeding ability, the article would have gaping holes and, therefore, be both ineffective and dangerous.
The Eleventh Circuit found breast-feeding is a gender-specific condition to pregnancy, which is covered by the plain language of the Pregnancy Discrimination Act. The court found that under that Act, if an employer engages in unequal treatment based on an employee’s breast-feeding needs, it is both a violation of that Act and unlawful sex discrimination.
However, the court went on to state that although these actions may qualify as illegal sex discrimination, employers do not have to change the job duties of breast-feeding employees, or make other changes to accommodate their medical needs. Rather, the employer must treat accommodation requests from breast-feeding workers on the same terms as they would other similar accommodation requests, which was exactly the case with Hicks. The City would routinely provide desk jobs to other employees with temporary injuries as accommodations, but left Hicks to decide between two different options, both of which left her unprotected on the job.
Although this decision controls only three states included in the Eleventh Circuit – Alabama, Florida, and Georgia – other courts may follow suit. Employers should use this decision as a guide when addressing the needs of nursing mothers in the workplace.
