Case Summary: Pregnancy Discrimination Act Protects Breastfeeding

In STEPHANIE HICKS v. CITY OF TUSCALOOSA, ALABAMA, the 11th Circuit Court held that the Pregnancy Discrimination Act (PDA) guarantees women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences - including breastfeeding.

Stephanie Hicks brought this civil action against the Tuscaloosa Police Department under the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA). Ms. Hicks worked first as a patrol officer and then as an investigator on the narcotics task force. When she became pregnant she requested assignments that prevented late night work and weekend work, this was granted but only after being demoted only eight days after returning from FMLA leave. Hicks overheard multiple conversations in which officers of the police department used defamatory and sexist language about her. After the baby was born, Ms. Hicks requested accommodations that would have allowed her to breastfeed in the workplace and would have excused her from duties which required wearing a vest that according to her doctor could cause a breast disease that would inhibit breastfeeding. These accommodation requests were denied.  Ms. Hicks viewed these actions as a constructive discharge and filed suit. 

Ms. Hicks prevailed at a jury trial wherein she was awarded $161,319.92 plus costs and attorney fees. The City appealed but the 11th Circuit Court, of which the State of Georgia is included, affirmed the decision.

The Court stated the important legal tests as follows:

  • The PDA amended Title VII to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” - the ultimate question is “whether the evidence, when viewed as a whole, yields the reasonable inference that the employer engaged in the alleged discrimination.
  • Under the FMLA the ultimate questions are whether: “(1)Hicks availed herself of a protected right under the FMLA; (2) [s]he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision.

In application of these tests to the facts as summarized above, the Court concluded there was 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. Furthermore, the Court found that the PDA covers discrimination against breastfeeding mothers and the City's failure to accommodate Hicks's requests, when it allowed accommodations to others similarly situated, constituted discriminatory constructive discharge, in violation of the PDA. 

Quick Tip: Monitoring Employees' Personal Communications

Generally the law gives employers broad rights to surveillance of their workplace, especially where company-owned devices are being used to communicate.

However, the federal Electronic Communications Privacy Act (“ECPA”) provides civil and criminal penalties for violators who intercept electronic communications such as telephone, email, voicemail, among others. Even the "business purposes" exception in the ECPA does not absolve employers who are only permitted to monitor on business-related communications but must cease surveillance as soon as they are aware that the communication is personal. From the outset, employers in contravention of the ECPA would be liable for equitable damages; additionally, in the 11th Circuit (which includes Georgia) actual damages, punitive damages, attorney fees and litigation costs are awardable at the Court's discretion.

Quick Tips: US Department of Labor Advisory Opinions

Avoid misinterpretations of the Fair Labor Standards Act (“FLSA”), the Family Medical Leave Act (“FMLA”), and other federal wage and hour laws by seeking guidance directly from the U.S. Department of Labor. 

The US DOL Wage and Hour Division will now recommence the issuance of opinion letters on the application of these federal laws to an anonymous employer's unique circumstances. The opinion letter becomes publicly available and can be fully relied on as a defense to wage and hour claims. 

Few useful facts about the Opinion Letter:

  • Response to applications are excessively delayed
  • Division exercises full discretion on which letters will receive a response  
  • No privilege applies to shield opinions from trade secret disclosures, pending audits, litigation and personal privacy, however, an attorney client privilege would be available if your attorney completes the application

Quick Tip: Avoid Misclassification Claims - Guaranteed Regulatory and Legislative Compliance

The Internal Revenue Service (IRS) SS-8 Determination is an audit conducted by the IRS of an employer's employee/independent contractor classification. The IRS would conduct an investigation to determine whether an individual is properly classified, in turn, this determination would be binding on the IRS and US DOL for that worker and other similarly situated workers should any subsequent issues arise. It is a fool-proof defense.

Few useful facts about the SS-8:

  • Application form and application guide are available online (lengthy and detailed)
  • No costs whatsoever
  • Entails investigation of the employer and a representative worker over a period of at least 6 months
  • Can be initiated by employer, employee or contractor

Ideally, endeavor to complete the audit before incurring heavy liability for unemployment insurance premiums and withholding taxes for misclassified workers.