Newsflash to Judge Lynn Hughes: Lactation is Related to Pregnancy

I reported a little over a year ago about a discrimination case out of Texas. A fired employee sued for wrongful termination based on discrimination, claiming that she was fired due to her request to use the bathroom to breast-pump.

The judge on the case was Lynn Hughes. Judge Hughes was apparently willing to begrudgingly admit that taking adverse job action against a woman because of her pregnancy could amount to illegal discrimination, but that was as far as he was willing to go. In an infamous decision, Judge Lynn Hughes held: “Lactation is not pregnancy, childbirth, or a related medical condition,” adding that after plaintiff gave birth, “she was no longer pregnant and her pregnancy-related conditions ended.” Based on that tortured logic, Judge Hughes held that the woman 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.

To that, I responded: “The ruling is, of course, utter nonsense. Lactation occurs because of childbirth, and if a mother cannot pump or nurse, she is at risk of mastitis.” I predicted the case would be overturned on appeal, and I was right.

The United States Court of Appeals for the Fifth Circuit just reversed the ruling by Judge Hughes, holding: “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.” The Court also held that “lactation is a related medical condition of pregnancy for purposes of the PDA.” As my kids would say, “no duh”.

I occasionally see judges make ridiculous decisions that show a fundamental inability to apply legal reasoning and logic. This poor woman was denied her day in court for more than a year because of an indefensible decision by Judge Hughes, who could not figure out that lactation is a part of pregnancy. Had the appeal not been taken up by the EEOC, the terminated employee might never have had her chance at justice. This decision should force Judge Hughes to realize that being a judge is just not a good match with his skill set, and he should pursue some other endeavor. Indeed, the Texas Civil Rights Project has already filed a complaint with the Fifth Circuit Court of Appeals, claiming judicial misconduct and asking for Judge Hughes to resign, relating to some allegedly racial comments he made.

Although the Court of Appeals put the case back on track, the employee still has some hurdles to overcome. The Court specifically stated that “nothing in this opinion should be interpreted as precluding an employer’s defense that it fired an employee because that employee demanded accommodations.” Some cases have held that an employee cannot state a claim under the Americans with Disabilities Act for failing to “accommodate” breast-feeding or pumping, because lactation is not a “disability”. In this regard, the employer in this case appears to have been hoisted on its own petard. It claimed that the employee abandoned her job (which the Court rejected), so it cannot consistently claim that she was fired for making a request for an accommodation.

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