table of contents
Page(s)
TABLE OF AUTHORITIES.............................................................
ii
argument...................................................................................... 1
CONCLUSION................................................................................. 13
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
Table of Authorities
Page(s)
Cases
Black v. Pan American Labs., LLC, 646 F.3d 254 (5th
Cir. 2011)............................................................................................ 12
Burlington Northern v. Santa Fe Ry. Co., 548 US. 53
(2006). 10
Chapter 7 Trustee v. Gate Gourmet, Inc., ___ F.3d
___ , 2012 WL 2072671 (11th Cir. June 11, 2012).............................. 12
County of Washington v. Gunther, 452 U.S. 161 (1981)
....... 10
Derungs v. Wal-Mart, 374 F.3d 428 (6th Cir. 2004) ................ 4
Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101 (1989).... 8
Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980).......................... 6
General Electric Co. v. Gilbert, 429 U.S. 125 (1976)................ 1
Jacobson v. Regent Assisted Living, Inc., No.
CIV-98-564, 1999.............................................................................................. 3
Martinez v. N.B.C., Inc., 49 F. Supp. 2d 305
(S.D.N.Y. 1999). 3
McDonnell Douglas v. Green, 411 U.S.792 (1973) ................ 12
Nev. Dep’t of Human Res. v. Hibbs, 538, U.S. 721
(2003)...... 5
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75 (1998) 9
Pension Ben. Guar. Corp. v. LTV Corp., 496
U.S. 633 (1990) 8
Puente v. Ridge, 2009 WL 1311504 (5th Cir. May 12,
2009)... 3
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248
(1981) 11-12
Urbano v. Continental Airlines, Inc., 138 F.3d 204
(5th Cir. 1998).................................................................................. 12
Vachon v. R.M. Davis, Inc., No. 03-234, 2004 WL
1146630 (D. Me. 2004)............................................................................. 4
Wallace v. Pyro Min. Co., 789 F. Supp. 867 (W.D. Ky.
1990), aff’d on other grounds, 951 F.2d 351 (1991)....................... 4
Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084
(5th Cir. 1975) (en banc)................................................................ 6,
7
Statutes
29 U.S.C. §§ 207(r).............................................................. 9-10
29 US.C. §215(a)(3)................................................................ 10
42 U.S.C. § 2000e-2(a) (1)............................................... passim
Pregnancy Discrimination Act (“PDA”), 42 U.S.C. §2000e-(k) .................................................................................... passim
Public Law 111-148 (2010).................................................. 9-10
Other Authorities
http://medicaldictionary.thefreedictionary.com/prolactin.......... 7
www.ehow.com/about_6465302_history-breast-pump.html.... 3
ARGUMENT
Title VII makes it unlawful for an
employer “to discharge any individual . . . because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). The Commission alleges that Houston
Funding (“HF”) violated this prohibition when Vice-President Harry Cagle fired
Donnicia Venters because she wanted to return to work while she still was
lactating (i.e., producing and expressing breast milk). The district court
granted the defendant’s motion for summary judgment, holding that “firing
someone because of lactation or breast-pumping is not sex discrimination.” ROA
207, RE Tab 3.1.[1]
In our opening brief, the EEOC
pointed out that Title VII’s express terms, its legislative history, and case
law all support the conclusion that discrimination on the basis of a
female-specific trait, such as producing or expressing milk, is discrimination
because of sex. EEOC br. at 14-16. We argued that when Congress passed the
Pregnancy Discrimination Act (“PDA”), it clarified that Title VII’s protections
“extend to the whole range” of related “physiological occurrences peculiar to
women.” Id. at 23. We also contended that the decisions cited by the
district court, mostly unpublished, were distinguishable or unhelpful because
they (1) contained no analysis or support; (2) rested on discredited reasoning
(i.e., the majority opinion in General Electric Co. v. Gilbert, 429 U.S.
125 (1976)), which had already been repudiated by Congress; and/or (3) relied
on an inapplicable “sex-plus” analysis. EEOC br. at 18-24. Finally, we argued
that under the correct legal analysis, the record evidence is sufficient to
create a genuine dispute about whether HF terminated Venters because Cagle was
opposed to Venters returning to work while she was still producing and
expressing milk.
In its brief as appellee, HF does not
directly respond to the Commission’s argument that firing a woman because of
the sex-specific trait of lactation is firing her on the basis of her sex. HF
does not disagree that both Supreme Court precedent and the law of this Circuit
make clear that Title VII’s broad statutory prohibition on sex discrimination
applies whenever (some or all) employees of one sex are subjected to
disadvantageous terms of employment to which employees of the opposite sex are
not. EEOC br. at 17-18. HF similarly does not challenge the Commission’s
assertion that when an employer discriminates based on a sex-specific trait or
function, the employer violates Title VII. And HF does not dispute that
lactation is such a female sex-specific trait. EEOC br. at 14-16. Moreover,
although HF relies on many of the same cases cited by the district court, it
simply ignores the arguments the EEOC made in its opening brief as to why those
cases are unpersuasive and/or inapposite.
Instead, shoehorning the facts of
this case into inapposite case law, HF tries to reframe and transform the
EEOC’s theory of the case into what HF somewhat dismissively (and repeatedly)
calls “breast-pump discrimination.” HF br. at 1-2, 5-8, 11-17. HF contends
that “[n]o federal case in the nearly 35 years since the PDA was passed has
found that Title VII prohibits ‘breast pump’ discrimination, but several have
found that it does not.” HF br. at 9.
According to HF, neither Title VII nor the PDA protects against this type of
discrimination because Title VII does not require employers to provide special
accommodations for pregnant (or recently pregnant) employees. HF cites for
support the handful of cases in which lactating employees were denied requests
for benefits in excess of that offered other employees. See HF br. at
9-11(citing Puente v. Ridge, 2009 WL 1311504 at *4 (5th Cir. May 12,
2009) (employer rejected request for extra break); Vachon v. R.M. Davis,
Inc., No. 03-234, 2004 WL 1146630 at *10-11 (D. Me. 2004) (employer rejected
employee’s request for “extra paid or unpaid leave on a daily basis” to return
home to breast feed her child); Martinez v. N.B.C., Inc., 49 F. Supp. 2d
305, 309-10 (S.D.N.Y. 1999) (employer rejected request for extra break time to
express milk); Jacobson v. Regent Assisted Living, Inc., No. CIV-98-564,
1999 Lexis 7680 at *29-30 (same); Wallace v. Pyro Min. Co., 789 F. Supp.
867, 869 (W.D. Ky. 1990) (employer denied employee extra personal leave to
breast-feed her infant at home), aff’d on other grounds, 951 F.2d 351 (1991)).
But that is not the EEOC’s theory
of this case. This is not a “special accommodation” case, as HF would like to
characterize it. Rather, this is a straightforward case of sex-based conduct.
It is uncontested that the first time Cagle learned that Venters was interested
in expressing milk at the workplace, Cagle responded negatively, with a sharp,
“No. Maybe she needs to stay home longer.” EEOC br. at 4. And when Venters
called Cagle and told him she wanted to express milk in the workplace, Cagle
took a noticeably lengthy pause before telling her that her position was
filled. Id. On this record, a reasonable jury could conclude that
Cagle fired Venters because he thought she should not come back to work while
she still was lactating – e.g., because he believed that new mothers should
stay at home until they no longer are actively nursing or simply should not be
expressing milk while at work. Thus, far from being novel or unprecedented (as
HF would have the Court believe, HF br. at 7, 8, 9, 11), the EEOC’s case, at
its core, is about discrimination grounded in common sex-based stereotypes.
Cf. Nev. Dep’t of Human Res.
v. Hibbs, 538 U.S. 721, 736-737 (2003) (explaining that sex discrimination
“is rooted, primarily, in stereotypes about women when they are mothers or
mothers-to-be”) (internal quotation marks omitted).
Nothing in the record suggests that
Cagle terminated Venters to comply with a company practice of refusing to give
extra breaks or private space for any employee to perform personal
physiological functions. There is nothing to indicate that Cagle was simply
standing on principle, refusing to treat Venters more favorably than other employees
or to give her a benefit that other employees would not get. Cagle did not say
that his decision to fire her had anything to do with her request to use a back
office occasionally to express milk. He did not state he could not provide her
such space. He did not state he could not provide her adequate break time. He
did not question her ability to perform her job while lactating. Cagle did not
ask Venters a single question or voice a single concern about whether it would
be feasible or desirable to “accommodate” her. And HF has never contended in
this litigation (or during the administrative processing of Venters’s charge or
in its representations to the Texas Workforce Commission), that Cagle fired
Venters because she wanted something in addition to what was offered to other
employees. Rather, HF has argued exclusively and consistently that Cagle fired
Venters for “job abandonment.” The authorities HF cites in support of
affirmance – all cases in which the employee was denied a benefit in excess of
that offered other employees – thus are inapposite.
Further, none of these cases grapples
with the Commission’s fundamental argument: Title VII’s general prohibition on
sex-based discrimination prohibits employers from terminating women because they
are lactating. Rather, the decisions analyzed the language of the PDA. As we
noted in our opening brief, EEOC br. at 13-14, those rulings focused myopically
on the three-term phrase “pregnancy, childbirth or related medical conditions,”
completely ignoring the terms preceding that phrase that clarify that Title
VII’s general sex-based prohibition is to be viewed expansively. 42 U.S.C.
§2000e-(k) (discrimination based on sex “includes, but [is] not limited to
. . . pregnancy, childbirth or related medical conditions”) (emphasis added).
EEOC br. at 23-25.
This Court has made clear that Title
VII “should reach any device or policy of an employer which serves to deny
acquisition or retention of a job or promotion in a job to an individual
because the individual is either male or female.” Willingham v. Macon Tel.
Publ’g Co., 507 F.2d 1084, 1091 (5th Cir. 1975) (en banc). The statute
“focuses its laser of prohibition” on discrimination based on characteristics
“either beyond the victim’s power to alter . . . or that impose a burden on an
employee on one of the prohibited bases . . . [such as] fundamental sex
characteristics.” Garcia v. Gloor, 618 F.2d 264, 269 (5th Cir. 1980).
Lactation is a fundamental sex characteristic of the female sex. See generally
http://medicaldictionary.thefreedictionary.com/prolactin
(prolactin – which, together
with other hormones released during pregnancy and childbirth, initiate and
maintain milk production, or lactation – “has no known function in human
males”). Firing a female worker because she is lactating punishes her because
of a normal biological and physiological function unique to women. Thus,
refusing to let an employee return to work because she still is lactating
contravenes Title VII’s express language, as well as the intent of Congress to
guarantee equal job opportunities for men and women. Cf. Willingham,
507 F.2d at 1091 (recognizing that “an employer cannot have one hiring policy
for men and another for women”).
In addition to failing to challenge
the EEOC’s argument that Title VII’s general ban on sex discrimination
prohibits employers from terminating employees because they are lactating, HF
interprets the PDA itself erroneously. HF summarily asserts, without analysis,
that lactation is not a “medical condition” related to pregnancy or
childbirth. HF br. at 14. HF offers no explanation for this conclusion. It
does not state what qualifies as a “related medical condition” or why lactation
does not.
Moreover, HF simply ignores the
Supreme Court precedent and legislative history supporting an inclusive reading
of the PDA’s terms. EEOC br. at 22-23. HF fails to explain how its position
can be reconciled with specific passages of the provision’s legislative history
explaining that Congress intended the protections of the PDA to include
“physiological conditions” which are “peculiar to women.” Id.
Similarly, HF does not contest the biological fact that lactation is the
natural hormonal outgrowth of pregnancy and childbirth. (Nor, factually, could
it have.) Indeed, given the link between pregnancy, childbirth, and lactation
– and using common sense to interpret what “related medical conditions” means –
the conclusion that lactation properly fits within the PDA’s protections
actually is rather unremarkable. See EEOC br. at 20-26.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80 (1998).
Equally without merit is HF’s
suggestion that inclusion of benefits for lactating employees in the Affordable
Health Care Act (“AHCA”) somehow circumscribes Title VII’s protections. HR br.
at 13-14; see also Pub, L. No. 111-148 (2010) (codified as amended at 29
U.S.C. § 207(r) (mandating certain employers to provide accommodations such as
lactation facilities and unpaid break time for certain employees, with limited
remedies). There is nothing unusual about federal statutes, such as Title VII
and the AHCA, coextensively prohibiting the same or similar acts and providing
overlapping protections – particularly where the two statutes cover different
types of employers or employees, or offer different remedies.[4] Cf. County
of Washington v. Gunther, 452 U.S. 161, 178-80 (1981) (remedies are
available for equal pay claims under both Title VII and the Equal Pay Act
(EPA), a provision of the Fair Labor Standards Act (FLSA), because although
they are coextensive in part, Title VII prohibits a broader range of practices
than the EPA does).
Finally, HF contends that
“the only issue” on appeal is whether the EEOC “asserted a viable claim for
relief under Title VII” – not whether “a reasonable jury could have found that
[HF’s] given reason for terminating Venters’ employment was a pretext for
breast pump discrimination . . . .” HF Br. at 6. While HF did not argue below
that summary judgment should be granted because there is no genuine dispute as
to whether Cagle fired Venters for “job abandonment,” this Court nevertheless
is free to recognize that a genuine dispute on this issue does exist,
necessitating a trial.
HF fails to counter the Commission’s
argument that drawing all reasonable inferences in favor of the EEOC, the
record evidence is sufficient for a reasonable jury to find that Cagle really fired
Venters because of a sex-specific trait. Rather, HF argues that to prevail on
a Title VII claim of intentional sex discrimination (like this one), this
Circuit requires a plaintiff to show that the victim “was treated worse than
some similarly-situated comparator employee.” HF br. at 16. In the absence of
evidence that the employer treated the lactating worker “worse than
similarly-situated non-PDA covered workers,” HF contends, an employee can never
demonstrate an inference of discrimination. Id.
HF is mistaken. All that is required
to make out a prima facie case is to adduce evidence that the victim suffered
an adverse action “under circumstances which give rise to an inference of
discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Comparator evidence is often relevant to claims of intentional
discrimination, including claims under the PDA involving equal treatment under
workplace rules. See Urbano v. Continental Airlines, Inc., 138
F.3d 204, 206 (5th Cir. 1998). But the Supreme Court, this Court, and other
Courts have long recognized that Title VII does not require such
evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 7792,
802 n.13 (1973) (explaining that the circumstantial evidence framework is
intended to be flexible and “is not necessarily applicable in every respect to
differing factual situations”); Black v. Pan Am., LLC, 646 F.3d 254, 278
(5th Cir. 2011) (emphasizing that the statute “does not require evidence of a
comparable employee whom the employer treated differently than the Title VII
plaintiff”); see also Chapter 7 Trustee v. Gate Gourmet, Inc.,
___ F.3d ___ , 2012 WL 2072671 at *6 (11th Cir. June 11, 2012)
(holding that non-pregnant comparator evidence is not
required where plaintiff demonstrates pregnancy discrimination through
other evidence sufficient to raise a reasonable inference of discrimination).
In a case like this one involving an adverse employment action allegedly taken
because of a sex-linked trait, a plaintiff could use comparator evidence,
but does not need to.
Here, as we explained in our opening
brief, there is ample affirmative evidence that HF fired Venters because she
wanted to return to her job while she still was lactating (e.g., Cagle’s
statement that Venters should “stay home longer”). There also was abundant
proof demonstrating that HF’s proffered reason was not worthy of belief. EEOC
br. at 28-32. This was sufficient evidence to allow the Commission to present
its case to a jury.
CONCLUSION
For the foregoing reasons, the judgment of the district court
should be reversed, and the case should be remanded for trial.
Respectfully submitted,
P.
DAVID LOPEZ
General
Counsel
LORRAINE
C. DAVIS
Acting
Associate General Counsel
DANIEL
T. VAIL
Acting
Assistant General Counsel
/s/
Susan L.P. Starr____________
SUSAN
L.P. STARR
Attorney
EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION
Office
of General Counsel
131
M Street, N.E., 5th Floor
Washington,
D.C. 20507
(202)
663-4727
susan.starr@eeoc.gov
