Does Title VII’s Pregnancy Discrimination Act (PDA) protect nursing mothers against post-pregnancy workplace discrimination? One federal court – the 11th U.S. Circuit Courts of Appeals – recently gave a resounding “Yes” to that question. Hicks v. City of Tuscaloosa, Alabama, 11th Cir., No. 16-13003, September 7, 2017. (With that decision, the Eleventh Circuit becomes the second federal appellate court to answer that question in the affirmative, with the Fifth Circuit having done so in 2013).
Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. She became pregnant in 2012. In spite of being directed by her supervisor at the time, Lieutenant Teena Richardson, to take only six weeks of leave, Hicks took the twelve weeks available to her under the Family and Medical Leave Act (FMLA) for the birth of her child.
On her first day back from FMLA leave, Hicks was written up for performance issues, in spite of the fact that her most recent performance evaluation stated that she had “exceeded expectations.” Richardson also was overheard by Hicks saying that she would find a way to “get [Hicks] out of here.” Seven days later, Hicks was transferred from the narcotics task force to the patrol division. As a result of that transfer, Hicks lost her vehicle and weekends off, took a pay cut, and was assigned different job duties.
Hicks then went on leave for postpartum depression. During that leave, Hicks’ doctor wrote to the Department, asking that Hicks be considered for alternate duties upon her return, such as a desk job, as the bullet-proof vest she was required to wear for patrol was physically restrictive and could cause breast infections that would impede her ability to breastfeed her child. There was evidence that the City provided desk jobs to employees to accommodate temporary medical conditions/injuries.
When Hicks returned from leave, she requested a desk job where she would not be required to wear a vest, and where she could conveniently take breaks to breastfeed. But because the Chief did not believe that breastfeeding warranted alternate duty, he informed Hicks that her choices were to forego the bullet-proof vest, or to wear a modified vest, and that she could take breaks during her patrols to breastfeed. Hicks considered the “no vest” option to be no accommodation at all, since patrols were inherently dangerous, and she was concerned because the modified vests left gaping, dangerous holes in the protection. She then resigned from employment.
Hicks filed a lawsuit against the City of Tuscaloosa, claiming: pregnancy discrimination; constructive discharge; FMLA interference; and FMLA retaliation. A jury found in favor of the City on the FMLA interference claim, but for Hicks on the remaining three claims. Hicks ultimately was awarded over $160,000, plus her attorney fees and costs.
The City asked the court for judgment in its favor in spite of the verdict or, in the alternate, for a new trial. Those requests were denied. Instead, the Eleventh Circuit found that the case provided “ample evidence that Hicks was both discriminated against on the basis of her pregnancy and that she was retaliated against for taking her FMLA leave,” and upheld the jury’s verdict.
Here are the events that led to the Eleventh Circuit’s decision:
- Richardson’s statements regarding Hicks, and the length of Hicks’ leave;
- Actions that were taken within 8 days of Hicks’ return from that leave;
- Disregard by the department for the request made by Hicks’ doctor for alternate duty; and
- The Chief’s unwillingness to view breastfeeding as an issue requiring accommodation.
According to the Eleventh Circuit, the PDA was meant to extend the protections of Title VII to all matters concerning the childbearing process’ “physiological occurrences peculiar to women,” including those that are post-pregnancy. While employers do not have to provide special accommodations to breastfeeding workers – other than those required by state law and under the current Affordable Care Act – Title VII and the PDA preclude employers from taking adverse action based on gender-specific physiological occurrences, and Courts now seem to be including breastfeeding in those occurrences.
This case also reminds employers that they must treat women with pregnancy-related conditions the same as workers who aren’t experiencing pregnancy-related conditions, as determined by the U.S. Supreme Court in Young v. United Parcel Service, Inc., in 2015.