This article addresses the legal treatment of claims by women against employers who discriminate against them because of their breastfeeding or lactation—for example, an employer who terminated a woman for breastfeeding her one month old in her car during her lunch break. Title VII prohibits discrimination “because of . . . sex,” and, when the United States Supreme Court held in 1976 that discrimination based on pregnancy was not discrimination based on sex (because, while all pregnant people are women, non-pregnant people are both men and women), Congress passed the Pregnancy Discrimination Act (“PDA”) which states that “because of . . . sex” includes “on the basis of pregnancy, childbirth or related medical conditions” and contained legislative history stating that the Gilbert decision had misunderstood the meaning of “because of sex.”

In canvassing the treatment of lactation related discrimination under these statutes and their state analogs, the article discovers a majority approach of concluding that such discrimination is not prohibited by these statutes and sets about systematically demonstrating that this is the wrong result. Camille meticulously reviews the language and history of these statutes and develops careful arguments that such discrimination is both because of sex under Title VII (since they are “intrinsic” to sex) and because of a “related [to pregnancy/childbirth] medical condition” under the PDA. The article then describes the scope of disparate treatment and disparate impact claims that would follow. A final section canvasses legislative actions that have provided protection against this kind of discrimination, legislation that the article considers laudable but, if the preexisting statutes were properly understood, superfluous.

In this article, Hébert contends that discrimination against transsexual and transgendered individuals constitutes sex discrimination within the meaning of Title VII. (Transgendered individuals, the broader category, refers to those “who fail to conform to the traditional stereotypes and characteristics associated with the gender that they are assigned at birth”). The article begins with a brief examination of the possibility of protecting these individuals under disability statutes, but concludes that such laws would only potentially cover a small subset of such individuals, while providing inadequate protection even to that subgroup while simultaneously stigmatizing them.

The article next covers the possibility of expressly including transgendered and transsexual individuals in anti-discrimination statutes. Legislative efforts in this regard have succeeded in about ten states, but failed elsewhere. The article then turns to consideration of existing sex discrimination prohibitions, Title VII in particular, and provides a detailed critical analysis of the decided cases. Claims of these individuals have met with some success when they rely on traditional sex discrimination claims, i.e., claims that would have the same content apart from the plaintiff’s transgendered status, though the article shows mixed outcomes.

Ultimately, however, Hébert offers a broader theory. The article develops the argument that the reasons employers and others “react negatively to transsexual and transgendered individuals may be precisely related to sex or gender.” Therefore, discrimination against these groups “should appropriately be considered discrimination on the basis of sex, as sex would have been a ‘motivating factor’ for the challenged employment practice.” After developing this argument, Hébert critically canvasses the almost uniform resistance from courts of such direct inclusion of transgendered individuals within Title VII’s protection.

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