An Arizona jury has sided with a breastfeeding paramedic, awarding the nursing mother $3.8 million for her lawsuit alleging she wasn't provided a lactation space as required by federal law.

Carrie Ferrara Clark sued the City of Tucson Fire Department, alleging that it violated federal employment laws when it failed to provide her with an appropriate lactation room on a consistent basis and when it retaliated against her for complaining about the issue. Her lawsuit alleged that the fire department's scheduler said he didn't believe she deserved any special accommodations. The HR manager also recommended that she use fire chiefs' and captains' bedrooms for pumping as needed, but Clark explained that waking up her supervisors every 2 to 3 hours seemed unreasonable. HR then told her "your pumping seems excessive to me.” When she tried to explain that such a schedule was normal for a newborn, the HR manager replied "well, it seems to me that you're not fit for duty."

A jury found the employer liable for discrimination and retaliation, awarding her $3.8 million. It found, among other things, that the employer discriminated against her because she was breastfeeding and that it assigned her to fire stations that did not have a space that complied with federal requirements for expressing breast milk.

The Fair Labor Standards Act (“FLSA”) states that employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

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In an opinion issued yesterday in Wittmer v. Phillips 66 Company, the Fifth Court of Appeals affirmed the granting of summary judgment in favor of Phillips 66 on a claim of employment discrimination based on transgender status.

The Court of Appeals went beyond merely upholding the lower court’s summary judgment however. In its opinion, the Fifth Circuit expressly rejected the district court’s determination that Title VII prohibits employment discrimination based on transgender status

The Fifth Circuit pointed to its past precedent holding that Title VII does not prohibit sexual orientation discrimination and faulted the district court for not distinguishing this case from that precedent. Interestingly, this decision leaves some room for the possibility that the Fifth Circuit might someday hold that Title VII does in fact prohibit transgender employment discrimination as long as the case is distinguished from discrimination based on sexual orientation, which the court has already ruled is not prohibited.

Here is the text of the Fifth Circuit opinion.

Here is a link to the Fifth Circuit oral argument.

Here is the text of the original district court opinion.