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Tuscaloosa Liable for Discrimination Against Breastfeeding Employee

Stephanie Hicks worked on the narcotics task force for the City of Tuscaloosa. She had a history of positive performance evaluations.

Ms. Hicks became pregnant. Her commanding officer offered her six weeks of FMLA but Ms. Hicks took the full twelve weeks. As soon as she returned, she was written up and was referred to as a “bitch.” The commanding officer was overheard saying that she would find a way to get rid of Ms. Hicks on a couple of occasions. Just eight days after her return, Ms. Hicks was reassigned to patrol which meant that she no longer had a city car and no longer had her weekends off. Plus, her pay was cut and she had different job duties. As part of being a patrol officer, she had to wear a ballistic vest. Her doctor wrote a note explaining that the vest could cause breast infections that would impede her breastfeeding. The commanding officer did not believe the limitation because other breastfeeding officers had worn them without problems. Ms. Hicks did not receive alternative duty; her choices were to wear no vest or a specially fitted one that would leave large holes. Ms. Hicks resigned.

The Eleventh Circuit Court of Appeals affirmed the trial court verdict in her favor. Intentional discrimination was inferred by the overheard conversations reflecting the supervisor’s intention to get rid of her and her transfer just eight days after returning from leave. She was also able to prevail on a constructive discharge claim because the breastfeeding accommodation was such that “any reasonable person” in her place “would have been compelled to resign.” Importantly, the circuit court also held that lactation qualified as a “medical condition” within the meaning of the Pregnancy Discrimination Act (PDA). “The PDA would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding — an important pregnancy-related ‘physiological process.’”