Florida employers can use this recent case as an example to train both managers and non-supervisory employees concerning how to react to pregnant employees and employees who are pumping breast milk after they give birth.  This case demonstrates how comments made by managers created significant legal liability for the employer.  This case also demonstrates how an employer lost its defense because, even though his had a policy addressing harassment, the policy was ineffective or not followed.  The fact that the policy stated that managers should report issues to HR was used against the employer when the manager failed to report the matter to HR, and the manager appears to have fumbled the handling of the complaints.


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Mistreating an employee pumping breast milk creates serious problems for employer

In general, for an employee to succeed on a hostile work environment claim, she must establish that 1) she suffered intentional discrimination because of her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected her, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability.

The employer filed a Motion for Summary Judgment, arguing that most of the allegations were not because of the employee’s sex. The district court rejected this argument, explaining that in certain circumstances, an employer’s denial of a pregnancy-related accommodation may indeed constitute sex-based discrimination in violation of Title VII and the Pregnancy Discrimination Act.  The court explained that in this case the employee’s claim was not that the employer failed to provide sufficient accommodation for her request to be placed in a nonsmoking area while pregnant; rather, she claimed that the treatment (comments and the like) related to this issue was part of a pattern of antagonism towards her pregnancy and subsequent pumping.

Regarding whether the discrimination was severe or pervasive, the court noted that during the months she was pregnant and immediately following her return to work, she was subject to frequent, derisive commentary regarding her pregnancy and subsequent breast milk pumping. The interactions ranged from irritation at the employee’s condition to patent humiliation. For example, the employee’s alleged interaction with a manager - where she asked him to take a pump break, and he responded by asking how large her breasts would get if she were not allowed to pump - is plainly “humiliating,” as it suggests that his response could be determined by the size of her breasts, or that he considered rejecting her request in order to observe the effect on her breasts.

When an employee became pregnant, she advised one of her supervisors and requested to work in nonsmoking areas of the workplace.  That supervisor frequently told her that her requests to work in nonsmoking areas were “an inconvenience.”  The pregnant employee reported those comments to a manager, who said she would speak to the supervisor. However, the supervisor continued to repeat the comment that her requests were an inconvenience.

The employee began a leave of absence in connection with her pregnancy, gave birth, and returned to work six weeks later.  Upon her return, the employee informed her colleagues that she would be breastfeeding her child and regularly using the employer’s private lactation room, known as the “Pump Room” during breaks. The employee claims that she soon began to experience issues with both management and other staff members related to her pumping. For example, on one occasion,
she asked a manager to take a pump break and he responded by asking how big her breasts would get if someone refused to let her pump. On another occasion, other managers commented to her that she was pumping too much, and that her son “should be on formula by now.”

The employee reported these incidents to a manger on at least three separate occasions. At one point, the manager to whom she complained told her that she should “watch [her] back” because several employees had approached the manager and complained that the employee was taking advantage of her breaks and was not actually pumping. The manager did not report any of these conversations to Human Resources.

On one occasion when the employee exited the pump room holding a bottle of milk, a co-worker commented to her, “[i]s that all the milk you pumped? You look like you’re drying out.” The employee responded that she had more milk in her bag. The co-worker then replied, “[w]ell I just want you to know you are jacking up everyone’s schedule. That co-worker then continued talking to others in the vicinity, saying that the pump breaks were unfair to others. The next day, the pumping mother reported her co-worker’s comment to a manager and the Director of Human Resources. The matter was investigated and the co-worker was initially issued a Written Warning “Level 2” for the incident, but it was later scaled back to “verbal feedback.”

Two weeks later the mother resigned, filed a charge of discrimination with the EEOC, and then filed a lawsuit in federal court, alleging, among other things, a hostile work environment in violation of Title VII for sex discrimination.

Further, the court explained that in light of the continuous commentary relating to her pregnancy, breasts, and need to pump, the employee in this case raised a triable question that a reasonable person would also find such an environment objectively hostile or abusive.

The employer argued that it should be absolved from any liability because of the Faragher – Ellerth defense. As a reminder, this defense is used when a supervisor is accused of harassment and when no tangible employment action was taken (such as terminating the employee).  In order for an employer to be successful in this defense, it must demonstrate that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.  The cornerstone of this analysis is reasonableness: the reasonableness of the employer’s preventative and corrective measures, and the reasonableness of the employee’s efforts (or lack thereof) to report misconduct and avoid further harm.

Here, it was undisputed that the employer maintains an anti-harassment policy. However, the Court felt that the employee provided ample indication that the policy was either ineffective or simply not followed: She claimed to have notified the shift manager (the highest-ranking manager during her shift), of the harassment on multiple occasions, yet the manager did not report the harassment to Human Resources until after the incident with the co-worker. Further, the Director of Human Resources, testified that, after receiving such a report, the supervisor should notify Human Resources. In addition, the court determined that the employer’s handling of the incident where the co-worker told the employee she was “drying out” and “jacking up everyone’s schedule” raises questions, since the employee testified that she was initially told there was no video of the event, but was later located, the co-worker received only verbal discipline, and the employee continued to experience issues (chiefly, an incident where one of the employer’s security officers started yelling at her and physically approached her, and refused to give her the key to the pump room) afterwards. Accordingly, the court ruled that the employee presented sufficient indication that the employer failed to exercise reasonable care to prevent and correct any harassing behavior to preclude summary judgment.

As to the second element, the court concluded that the employee adequately demonstrated that she took advantage of the preventive or corrective opportunities that the employer provided, by repeatedly flagging the issue to management. Here, the parties agree that, within the span of six months, the employee reported the harassment on multiple occasions to the shift manager, and ultimately to the HR Director as well. Thus, on this prong as well, the Court ruled that the employee’s claim was sufficient to withstand summary judgment.

As a result, for these reasons, the employee was determined to have adequately made out her hostile work environment claim, and the employer failed to demonstrate on its summary judgment motion that it was entitled to the Faragher-Ellerth defense as a matter of law. As a result, summary judgment in favor of employer was denied on the hostile environment claim.

Mercado v. Sugarhouse HSP Gaming, L.P., No. 18-3641, 2019 U.S. Dist. LEXIS 122854 (E.D. Pa. July 23, 2019).

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