Moms rule in lactation, pregnancy, and health insurance challenges

Mother's Day is long past, but you'd never know it -- in employment law, this has been the Week of the Moms. Here's a roundup - tell us what you think!

First up: Title VII's ban on pregnancy discrimination includes discrimination based on lactation or the need to express milk. The U.S. Court of Appeals for the Fifth Circuit* has held in a lawsuit filed by the U.S. Equal Employment Opportunity Commission that lactation is a "pregnancy-related condition" and that Title VII prohibits discrimination based on pregnancy or pregnancy-related conditions. Therefore, discriminating against a woman because she is lactating or because she needs to express milk violates Title VII.

*The Fifth Circuit hears appeals from federal courts in the states of Louisiana, Mississippi, and Texas.

My two cents: Of course it does! I am surprised that anyone would have thought otherwise. None of which means that the employer in this case necessarily did that. But the summary of the evidence in the court's decision doesn't look great for the employer -- the employee was terminated when she was ready to return to work from maternity leave and asked about a place where she could express milk.

(This type of "discrimination" could also violate the Fair Labor Standards Act, now that it has been amended to require "lactation accommodation" in certain circumstances.)

So, chalk up another win for the EEOC and send them a breast-milk lollipop! (Artificially flavored, thank heavens. I wish I were kidding, but I am not.)

Now, tell us what you think. Is lactation related to pregnancy? Do you think an employer ought to be able to fire or refuse to hire a woman who needs lactation breaks at work? Would you eat a breast-milk-flavored lollipop, as long as it was vegan?

Second up: Catholic Archdiocese of Cincinnati is hit for $170,000+ in pregnancy discrimination case. I reported on this case about a year ago, when the Archdiocese unsuccessfully tried to have the lawsuit dismissed for failure to state a claim. An interesting intersection of pregnancy discrimination rights, modern reproductive technology, and the rights of religious organizations to enforce their tenets.

The plaintiff was an unmarried computer teacher at two Catholic schools in the Archdiocese. She was not Catholic and did not teach religion or do any of that "ministerial" stuff as part of her job. She learned that she was pregnant and informed her principals. The teacher clarified that she had conceived the child, not through extra-marital relations*, which would be a sin, but through in-vitro fertilization. Well, guess what - in vitro fertilization is also a sin under Catholic doctrine. The Archdiocese mandated that her employment be terminated.

*In fact, at some point it became known that she was in a same-sex relationship, which also would have violated Catholic teaching, but apparently that had nothing to do with the decision to terminate her employment.

When I reported on the case last year, it was because the court had determined that the teacher was not a "ministerial employee" and therefore the Archdiocese could not get the lawsuit dismissed right off the bat without discovery or a trial. The case went to a jury, and this week, the jury decided in the teacher's favor, including $100,000 in punitive damages. The Archdiocese is reportedly considering whether to appeal.

The lawyer for the Archdiocese has been quoted as saying that this was a simple breach-of-contract case and should have been treated as such (the teacher had signed an agreement saying she would abide by Catholic teaching).

My two cents: Religious employers should have the right to require employees to abide by their tenets. And even a non-religious teacher in a religious school sets an example for the students, so I can see why the Archdiocese wouldn't necessarily care whether she was "ministerial" or not. I think it is a shame that this case went to a jury -- I would not expect most juries to side with a religious employer that took action based on teachings that were not "in synch" with the beliefs of the wider society. That's part of why we have things like ministerial exceptions, not to mention the First Amendment. For all of these reasons, and so that we can get some clarification on how religious/morals clauses work for non-ministerial employees, I hope that the Archdiocese appeals.*

*A finding that an employee is "non-ministerial" means that the case won't automatically be thrown out of court. But even if the employee is non-ministerial, it seems to me that a religious employer should be able to require the employee to behave in a manner that is not blatantly inconsistent with the employer's beliefs. If I'm right about this, then an employer should be able to win summary judgment even against a non-ministerial employee if there is no "genuine issue of material fact" that the employee was terminated for overtly violating a bona fide tenet of the faith, a legitimate, non-discriminatory reason for discharge.

ON THE OTHER HAND . . . if a religious employer is going to insist that employees abide by the tenets of the faith, then the employer ought to clearly explain what those tenets are -- especially if the employees are from other faiths, or maybe even non-believers. Many religious beliefs are not self-evident.

The teacher in this case claimed that she had no idea that in vitro fertilization was prohibited by Catholic doctrine, and that may very well have been true. If she didn't know, then it doesn't seem fair to take action against her.

The other thing I hate about these "morality" cases is that the consequences always seem to fall on the unwed mother. I realize that "unwed fathers" escape in most cases because (a) there are no visible consequences when guys violate -- er -- religious doctrine, and (b) these situations usually come up at schools, and most schoolteachers are female, anyway. And presumably there are female teachers who are getting away with -- violating religious doctrine -- because they haven't become pregnant. I know all this. But it still bothers me that it's almost always the pregnant woman who suffers.

So, in summary, I respect the Archdiocese for sticking to its principles and hope they don't give up, but at the same time it sounds as if their case had some weaknesses.

What do you think? Do you agree that a religious employer has the right to require all employees to abide by its tenets? Was this teacher a victim of pregnancy discrimination, in your opinion? How should religious employers deal with -- violations of religious doctrine -- in a way that doesn't disproportionately affect pregnant women?

Third up: Women's advocacy group sues "major employers" under Affordable Care Act for not offering maternity care to employees' dependent children. The National Women's Law Center has filed complaints with the U.S. Department of Health and Human Services' Office of Civil Rights against several large employers, including Auburn University, Gonzaga University, and Penn State for failing to provide maternity health insurance benefits to dependent children of their employees. (Apparently, these employers do offer maternity care to spouses and domestic partners of their employees.)

According to the Law Center, these may be the first complaints of their kind under the Affordable Care Act (aka "Obamacare"). The Law Center contends that the employers are discriminating on the basis of sex by failing to offer a category of care needed by the daughters, but not the sons, of their employees. Not all of the employers targeted have commented on the complaints, but Gonzaga contends that its health insurance coverage complies with the law.

My two cents: The Affordable Care Act does prohibit sex discrimination "in health care programs that receive federal funds" and discrimination "against pregnant women on the basis of sex." And now that kids are covered until age 26 . . . ugh, I don't know. What do you think? Maybe we should just go to single payer and put ourselves out of our misery? (Kidding!)

After this post, it will be a relief to think about Father's Day, and power tools, lawn mowers, gas grills, and other "guy" stuff. I couldn't find a non-copyrighted picture of my hero, Hank Hill, to post here, but this is even better:

Vroom! Go, dads!

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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