Houston Judge: "[F]iring someone because of lactation or breast-pumping is not sex discrimination."

 A federal judge in Houston has the employment law community up in arms over his ruling that “firing someone because of lactation or breast-pumping is not sex discrimination.”  The ruling in EEOC v. Houston Funding seems to fly in the face of the obvious fact that treating a woman different than men due to concerns about lactation is clearly discriminating on the basis of sex.  The Court, apparently not recognizing this obvious fact, stated its opinion succinctly as follows:

"She [the plaintiff] gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination."

This statement is, of course, absurd.  Current law clearly protects pregnant women from being fired simply because they are having a child, and also protects against discrimintion against "pregnancy-related conditions."  How a court can come to the conclusion that lactation is not pregnancy-related simply boggles the mind.

 

Virtually every legal commentator and blogger that I have seen discuss the case has called out this decision as being clearly wrong.  Some are already calling for Congress to take up the issue and "fix it."  However, my friend, defense lawyer and fellow blogger, John Hyman makes the excellent point that while this case is obviously incorrect, it is likely just an aberration by a judge that simply got it wrong this time.  He is correct of course.  Calls for remedial legislation may be a bit premature at this point. This bad decision may very well be corrected on appeal.  Additionally, this decision will have no precedential effect as this is only a trial court ruling and it is very unlikely to be followed by other courts around the country.  The vast majority of judges are likely to understand that lactation is, in fact, pregnancy related and that discrimination based on lactation is sex discrimination because [NEWS FLASH] only women can do it.

 

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