By Brandi O. Brown, J.D.
Denying motions for summary judgment filed by both parties, a federal court in the District of Columbia ruled that lactation was a covered medical condition under the Pregnancy Discrimination Act and that a patrol officer produced sufficient evidence to allow a jury to conclude the employer discriminated against her when it denied her request for limited-duty status. With regard to her retaliation claims, she offered compelling evidence of temporal proximity between her complaint about the lactation room and her employer's decision to move her to patrol duty (Allen-Brown v. District of Columbia
, March 31, 2016, Moss, R.).
Limited duty to full status.
After returning from maternity leave, the patrol officer with the D.C. Metropolitan Police Department was placed on limited-duty status as the result of a policy automatically granting new mothers limited duty for six weeks. She was still breastfeeding upon her return to work and, therefore, needed to express milk at work two or more times per day. Shortly after returning, she requested that she be returned to full-duty status and, as hoped, was assigned a night shift. Initially she was assigned to station or inside duty, which did not require her to wear a bullet-proof vest.
Bathroom lactation and complaint.
However, the lactation room she had to use was a lounge room located inside the women's restroom and she was concerned about its cleanliness. Ultimately she submitted a written complaint about the lactation area and on the same day she received a response, she was assigned to patrol duty for the first time. When the employee responded that she could not perform patrol, she was ordered to report to the medical clinic. The clinic doctor completed a "Limited Duty Certification Form" for her the following day. The next day the medical services director informed her that her status had been changed to "limited duty" and told her that notwithstanding her failure to complete the proper request, her case had been reviewed and the director had determined she would "not receive authorization to participate in the limited duty work program."
She was then placed in a chargeable sick status and went on leave, much of which was unpaid. She returned to full-duty status after she finished breastfeeding. In the meantime, she filed an EEOC charge and later filed suit alleging violations of Title VII, the D.C. Human Rights Act, and the D.C. Code, among other claims.
Lactation as medical condition.
With regards to the employee's claims of gender, pregnancy, and family responsibility discrimination under Title VII and the DCHRA, the employer argued that breastfeeding and lactation were not covered by the PDA or Title VII. Although the employer raised this for the first time in its reply brief, the court nevertheless considered whether "lactation" constituted a medical condition that was related to childbirth under Title VII. It concluded that it is. Relying on medical dictionaries, the court explained that a "medical condition" would include a "physiological condition" such as lactation. Therefore, the court concluded, "as a matter of plain language, the PDA applies to lactation." This conclusion was bolstered by similar conclusions by other courts in other jurisdictions, as well as by the position adopted by the EEOC.
The employer's primary argument, however, was that the denial of a limited-duty accommodation was not taken on the basis of the employee's gender or the fact that she was lactating. Instead, the employer argued that the employee failed properly to request an extension of limited duty as required by policy. Under the PDA, the employee could carry her burden of showing that the employer had, instead, discriminated against her on the basis of her gender or pregnancy-related condition either by producing traditional evidence supporting pretext or by showing that the policy posed a significant burden on pregnant employees.
The employee offered traditional evidence. First, she noted the language used in the denial, which stated that "[n]otwithstanding" her failure to complete the proper request, her case had been reviewed and authorization had been denied. A jury would have to determine if this language was simply a bad word choice. Second, it was disputed whether officers were even aware of the policy she allegedly failed to follow. Third, there was some dispute over who actually made the decision that her request should be denied. Moreover, although the employer pointed out that over half of the denials for such requests were made because the officer in question failed to meet the same requirement for making a request, it was not clear if the employer had actually identified the proper comparators given that the employee was relying on traditional evidence. The employee, instead, pointed out over 10 other officers who had sustained injuries were accommodated, while she was not.
As to the employee's retaliation claims, based upon her complaints about the condition of the lactation facility, the court likewise rejected the employer's motion. Although the employer argued the decisionmaker was not aware of her complaints, the court found that a fact dispute existed. In this case, the temporal proximity was compelling circumstantial evidence. The first shift she reported to after her complaint was acknowledged was the first shift on which she was assigned to patrol duty. There was also evidence casting doubt on the decisionmaker's assertion that he was unaware of her complaint. In fact, he had contact with at least one person who was aware of the complaint. And there was some dispute over whether he was actually the decisionmaker. As to whether the employee's complaint about the lactation room was protected opposition, the relevant question was whether she had a reasonable belief that her rights were being violated.
The court denied the employee's motion as well, which was based on her contention that the employer had violated a D.C. Code provision by locating the lactation area within a bathroom.