Thursday, September 21, 2017

HIcks v. City of Tuscaloosa: Employers May Be Required to Accommodate Breastfeeding

In Hicks v. City of Tuscaloosa, No. 16-13003 (Sept. 7, 2017), the Eleventh Circuit upheld a jury verdict that Stephanie Hicks, a narcotics officer, was constructively discharged when she was denied "alternative duty" as an accommodation while she was breastfeeding. Notably, this decision is the first to extend the Supreme Court's decision in Young v. UPS to breastfeeding.

Under Young, an employee may be able to establish intentional pregnancy discrimination where an employer provides an accommodation to non-pregnant employees but denies the same accommodation to pregnant employees who are similar in their ability or inability to work. In Hicks, the Eleventh Circuit held that discrimination based on breastfeeding constitutes a form of pregnancy discrimination since breastfeeding is a pregnancy-related "medical condition." Thus, denying an accommodation to a breastfeeding employee that is granted to a non-pregnant employee may constitute unlawful pregnancy discrimination.

Here, although it's hard to disagree with the Eleventh Circuit's broad holding applying Young to breastfeeding, I think the court's application of that rule in this particular case leaves much to be desired. In particular, under Young, an employer does not necessarily violate Title VII by denying an accommodation to pregnant employees that it provides to non-pregnant employees. Rather, the question is whether the plaintiff has provided sufficient evidence that 
the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather -- when considered along with the burden imposed -- give rise to an inference of intentional discrimination.
In upholding the jury verdict, the Eleventh Circuit failed to examine whether the evidence was sufficient to establish an inference of intentional discrimination. Significantly, the fact that an employer grants some non-pregnant workers a particular accommodation does not necessarily mean that pregnant workers are denied the accommodation because of pregnancy. It may instead merely be the case that some non-pregnant workers are being treated better for reasons unrelated to pregnancy. As the Eleventh Circuit stressed in Hicks, pregnant workers do not have the right to better treatment because of their pregnancy. Unfortunately, however, the court failed to look at whether the evidence was sufficient to show that pregnant (or breastfeeding) workers were singled out for worse treatment, and were not merely denied a special accommodation that the employer provided to a narrow subset of non-pregnant workers.

Finally, even if there was sufficient evidence that the denial of alternative duty to Hicks constituted intentional pregnancy discrimination, it is not at all clear that the denial was sufficient to constitute a constructive discharge. The city pointed out that the Police Chief offered to accommodate Hicks by "assigning her to a safe beat with access to lactation rooms, priority in receiving breaks, and a tailored vest." The court notes that the jury concluded that these conditions were so intolerable that a reasonable person would be forced to resign. But not every adverse action constitutes a constructive discharge. Even if Hicks was denied an accommodation because of her pregnancy, such a denial would not necessarily mean that she was constructively discharged. Considering what the City apparently offered Hicks in lieu of alternative duty, the reasonableness of her resignation is not clear on its face, and so the court should have provided some justification for affirming the jury's constructive discharge finding.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.