You’ve probably heard about the Supreme Court’s decision to deny certiorari in Ames v. Nationwide Mutual Insurance Company, in which a lower court had denied a woman’s pregnancy discrimination claim for alleged failure to provide reasonable accommodations for lactation, followed by constructive termination. The aspect of the case that has been making its way around the web is the trial court’s statement that the case was not an example of sex discrimination, because (to paraphrase), men can lactate, too. While I find fault with the decisions of the trial court, the Eighth Circuit Court of Appeals, and the Supreme Court in this case, the “men can lactate too” statement is not a particularly critical part of the analysis—although it is an attention-grabbing one.

I actually started this post all full of piss and vinegar over a crappy legal decision based on a ridiculous premise, but as I read more about it I realized that the real legal basis for the trial and appellate courts’ decisions, and probably the Supreme Court’s rejection of the case, is not as ridiculous as the “male lactation” bit. The case has far more to do with what employees must do to trigger and employer’s legal responsibility to provide “reasonable accommodations” for pregnant employees, or employees who have recently given birth.

Regardless, it put me in mind of an episode of the unbearably terrible ’90s Rob Schneider sitcom Men Behaving Badly, which I remember for some reason. The full episode is embedded below, but here it is queued up to the relevant scene (at the 9:49 mark), if you want to spare yourself the pain of watching up to that point.

The trial court held, in part, that the plaintiff’s firing was based on failure to follow the employer’s procedures for requesting use of the lactation room, not the request itself. This is where the “male lactation” thing comes in. The court also noted that, even if the employer had fired her because she needed to breastfeed or pump at work, that would not be discriminatory because men have nipples and assorted breast-parts, too. It’s a ridiculous statement, but not one that significantly impacted the outcome of the case.

To provide the full context, the trial court’s order (PDF file) granting summary judgment for the defendants makes the following statement in footnote 28 on page 13:

Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss.

Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

I think I join with most people in saying that this is a silly thing for a federal judge to write. It comes in the second or third paragraph of a footnote that spans two pages, after a discussion of caselaw that contradicts some of the plaintiff’s legal claims. Here’s the entirety of footnote 28 (links added when possible):

Ames argues that she is a member of a protected class—that of lactating mothers. See Pl.’s Resistance Br. at 17–23. In support, Ames argues that lactation is a medical condition related to her pregnancy. See id. at 17–18 (citing 42 U.S.C. § 2000e(k)). Several courts, however, have considered and rejected the argument that terminating an employee due to lactation is gender or pregnancy discrimination. See EEOC v. Houston Funding II, Ltd., et al., No. H-11-2442, 2012 U.S. Dist. LEXIS 13644, at *3–4 (S.D. Tex. Feb. 2, 2012) (“Firing someone because of lactation or breast-pumping is not sex discrimination.”) (collecting cases).

In disputing the soundness of these cases’ legal analyses, Ames relies primarily on Falk. See Pl.’s Resistance Br. at 19–20. After providing an overview of existing case law surrounding lactation, the Falk court summarized:

As it stands, no existing case law correctly excludes lactation or other conditions experienced by the mother as a result of breast-feeding from Title VII protection under the PDA. A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered.

Falk, 2012 U.S. Dist. LEXIS 87278, at *13 n.7 (emphasis added). Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at
http://www.scientificamerican.com/article.cfm?id=strange-but-true-males-can-lactate&sc=rss. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

Assuming, arguendo, that Ames had presented sufficient evidence that lactation was a medical condition related to pregnancy, the Court is doubtful that she has presented enough facts to establish that her alleged constructive discharge was due to her medical condition (lactation) rather than due to her desire to breast-feed. See Falk, 2012 U.S. Dist. LEXIS 87278, at *13 n.7. Indeed, Ames’s Amended Complaint contains several references to her desire to pump milk as a form of nutrition for her newborn son. See Am. Compl. ¶¶ 22–23, 32, 42, 45. As Falk held, however, “Title VII does not extend to breast-feeding as a child care concern.” Falk, 2012 U.S. Dist. LEXIS 87278, at *10.

To summarize the court’s reasoning, the plaintiff had to prove that she was fired due to pregnancy or a medical condition related to pregnancy, she offered evidence that she was lactating, and this was not sufficient because lactation is not a medical condition exclusively associated with pregnancy.

To be clear, I think the court is wrong about this. For one thing, the federal Pregnancy Discrimination Act does not state that a medical condition related to pregnancy must be one that is exclusively related to pregnancy. That would be ridiculous, yet that seems to be at least part of the court’s reasoning here. It’s just not all that critical to the final ruling—the Eight Circuit Court of Appeals didn’t even mention it in its opinion. The plaintiff made numerous other claims, and I think the far more important issue is the court’s ruling on whether she did enough to make the employer liable for failing to provide her with a reasonable accommodation.

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Here’s that Men Behaving Badly episode:

Photo credits: milk typography by johnnyhuynen [CC BY-ND 3.0], via DeviantArt; lenarc (Own work) [CC BY-SA 3.0], via Wikimedia Commons; Dario Sanches [CC BY-SA 2.0], via Wikimedia Commons.