On June 3d we wrote our final post about the contentious “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 (found in the “Pregnancy Discrimination Act,” or PDA) 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.”

The EEOC appealed the decision and we predicted a reversal.  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.”

The Court of Appeals reversed in a short opinion that affirmed the broad reach of the PDA. It held that ‘The EEOC’s argument that Houston Funding discharged [the employee] because she was lactating or expressing breast milk states a cognizable Title VII sex discrimination case.” Moreover, the Court also held that “lactation is a related medical condition of pregnancy for purposes of the PDA.”

Citing the Houston Funding case, a federal court in Kansas has just ruled that female employees of a District Attorneys’ office stated a legal claim for retaliation for complaining about the office’s failure to provide an appropriate place for breast-feeding or pumping.

This case is a little more nuanced than the Great Texas Lactation Case.  In this case, the defendant contended both that a failure to accommodate breastfeeding does not violate Title VII, and that, therefore, there could be no retaliation as a matter of law since the employees could not have had a reasonable, good faith belief that the office’s conduct was violative of Title VII.

However, the Court held that plaintiffs reasonably believed that not providing a place to breast-feed violated Title VII, even if not providing a place to breast-feed did not violate Title VII.  Got that?

The Court:  “Even if the failure to provide breast feeding accommodations does not violate Title VII, it does not necessarily follow that as a matter of law, plaintiffs did not have a reasonable good-faith belief that defendants’ conduct was discriminatory. … The standard has subjective and objective components, i.e. that plaintiffs subjectively believed that practice was unlawful and that the belief was objectively reasonable in light of the facts and record presented. … Accepting plaintiffs’ factual allegations as true, they plausibly give rise to a claim that plaintiffs had a reasonable belief that the alleged conduct was unlawful.”

The law marches on slowly but with determination.