Federal law not only protects you from workplace discrimination during pregnancy, but also from discrimination after pregnancy. The Pregnancy Discrimination Act (“PDA”) of 1978 amended the Civil Rights Act to include discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Some federal courts have held that breastfeeding or pumping milk at work constitutes a “related medical condition” protected from discrimination.

In the recent case of Mercado v. Sugarhouse HSP Gaming, L.P.a federal court in the Eastern District of Pennsylvania held that a casino employee adequately made out her hostile work environment claim based on discrimination for taking time at work to pump breast milk.

Three years after Rita Mercado started working as a table game dealer at the Sugarhouse Casino, she became pregnant with her first child. She requested reassignment to non-smoking areas of the casino, but was told that she had to start her shift at a smoking section while management attempted to find a new placement. A particular pit manager stated several times to Mercado that her requests for reassignment were “an inconvenience.” Upon return from maternity leave, she informed her colleagues that she would be breastfeeding her child and using the casino’s private lactation room known as the “Pump Room,” to express breast milk.

Mercado soon began to experience issues with both management and other staff members. When she asked one pit manager for permission to take a pump break, he asked how big Mercado’s breasts would get if someone refused to let her pump.”

Another pit manager stated that Mercado was “beautiful, if only [s]he could stop pumping.” Still another pit manager stated, “isn’t that boy done eating by now?” Others commented that she was pumping too much and that her son “should be on formula by now.” One time when Mercado was exiting the Pump Room, another dealer, Lauren Roche, commented, “is that all the milk you pumped? You look like you’re drying out.” She added, “I just want you to know you are jacking up everyone’s schedule.” Mercado reported everything to management, who investigated Roche’s comments. Roche was merely issued a written warning that was later scaled back to verbal feedback.

The incident that led Mercado to quit her job involved a security officer, Tequila Phillips, who physically approached Mercado and started yelling at her, refusing to give her the key to the Pump Room because Mercado was supposed to return the key every time, but never did. Mercado reported the incident to management, who merely stated that Ms. Phillips was “high strung.” The next day, Mercado called and resigned her position.

Mercado sued Sugarhouse Casino, Sugarhouse’s Director of Human Resources, and another employee in federal court claiming a hostile work environment and constructive termination in violation of the Civil Rights Act. The defendants attempted to move for summary judgment to get rid of the claims, but the federal court held that Mercado provided sufficient evidence of intentional discrimination because of her sex by attesting that she was subject to assorted discriminatory treatment regarding her pregnancy and subsequent need to pump breast milk that was severe or pervasive, and that led her to fell both unwelcome and unsafe.

Although Sugarhouse had an anti-harassment policy, there was ample indication that the policy was either ineffective or simply not followed, showing that Sugarhouse failed to exercise reasonable care to prevent and correct any harassing behavior.

In reaching its decision, the Eastern District of Pennsylvania relied on Hicks v. City of Tuscaloosa, Alabama issued by the Eleventh Circuit Court of Appeals on September 7, 2017, which held that

[t]he [Pregnancy Discrimination Act] would be rendered a nullity if women were protected during a pregnancy but then could be readily terminated for breastfeeding.”

In Hicks, a female police officer was discriminated against, because her request to be reassigned to a desk job after returning from maternity leave was rejected. She was trying to avoid using a restrictive ballistic vest all day that her doctor told her could cause breast infections leading to the inability to breastfeed.

If you believe you are experiencing or have experienced discrimination at your job because you are pregnant, breastfeeding, or experiencing any post-pregnancy medical conditions, you should contact an attorney who can advise you of your legal rights. We are here to listen to you and to discuss your options.