Recently, the U.S. Court of Appeals for the Eleventh Circuit determined that breastfeeding is a related medical condition to birth, and different treatment based on an employee’s breastfeeding is prohibited under the Pregnancy Discrimination Act (“PDA”). In Hicks v. City of Tuscaloosa, 870 F.3d 1253 (11th Cir. 2017), the plaintiff was a police officer who took twelve weeks of unpaid leave under the Family Medical Leave Act (“FMLA”) following the birth of her son. The day she returned from leave, the plaintiff was written up, and 8 days later, she was reassigned from the narcotics task force to the patrol division. The new position required the plaintiff to wear a ballistics vest for her entire shift. The plaintiff’s doctor wrote a letter recommending she be given light duty because the ballistics vest was restrictive, and could lead to infections and an inability to breastfeed. The employer offered for the plaintiff not to wear the vest at all or to wear a specially fitted vest that did not provide complete coverage. The Eleventh Circuit considered whether these facts constituted discrimination under the PDA.

The Eleventh Circuit held that a plain reading of the PDA supports the finding that breastfeeding is a protected activity because it is a sufficiently similar gender-specific condition covered by the broad phrasing of the PDA. The Eleventh Circuit held that while employers are not required to provide “special accommodations to breastfeeding workers,” they are required to provide the same types of accommodations to breastfeeding workers as other similarly situated employees. For example, employees who have temporary injuries are given light duty. A breastfeeding employee can request this same accommodation.

Employers should revisit their policies and procedures related to pregnancy and be sure to engage in an interactive process with employees requesting accommodations due to pregnancy or a pregnancy related condition, such as breastfeeding.