On February 9, 2012, we reported on the “Great Texas Lactation Case,” where a Texas federal judge held that a woman who claimed to have been fired for seeking to pump breast milk while on the job had no viable claim under Title VII’s prohibition against discrimination based upon pregnancy, childbirth or a related medical condition.   

The Texas judge famously (notoriously?) held that "Lactation is not pregnancy, childbirth, or a related medical condition," and stated curtly that after plaintiff gave birth, “she was no longer pregnant and her pregnancy-related conditions ended."

We later noted that the EEOC appealed the decision, and numerous organizations such as The Texas Pediatric Society and the Texas Medical Association filed a “friend of the court brief” in support of the EEOC’s appeal, arguing that “since the yielding of milk by mammary glands is a medical condition caused by pregnancy and childbirth, lactation is a ‘related medical condition’ as contemplated by Title VII.”

It came time for oral argument on the appeal last week, and the EEOC told a federal appeals court that Title VII, as amended by the Pregnany Discrimination Act, or PDA, protects women from being fired for both lactation and breast pumping. On the other hand, counsel for the company told the court that “breast pump discrimination is not protected by Title VII.”  

The Chief Judge, Edith Jones, took up this argument and tried to distinguish between “the desire to express breast milk,” and “lactation.” Judge Jones said that the plaintiff “didn’t say: May I lactate while I’m at work? She said: May I bring a breast pump to work?”      

The EEOC replied that “When you are firing somebody because of a sex-specific trait, then you are firing them on the basis if sex.”  

Seems like this appellate argument went beyond the trial court’s holding and decided to split hairs: is there anyone out there who cares to comment on the practical distinction between “lactating while at work” and “bringing a breast pump to work?”   Was the PDA really written to be read so narrowly?