This is a case brought by a police officer, Stephanie Hicks, who was patrol officer on a narcotics task force in Tuscaloosa, AL. Hicks v. City of Tuscaloosa, No. 7:13-cv-02063-TMP, 2015 WL 6123209, at *2 (N.D. Ala. Oct. 19, 2015). Seven days after her return from leave for the birth of her baby, she received a poor quarterly evaluation reprimanding her for obtaining too many warrants and for not changing the oil in her patrol car on time. Id. at *5. Over the next several months, her supervisors said they wanted to “get rid of that little b-tch,” called her a “c-nt,” complained about her taking the full 12 weeks of FMLA leave, complained about her “disappearing” to express breast milk, and forced her to express breast milk in the locker room. Id. at *6-*7. In December 2012, citing the plaintiff’s inadequate performance and motivation, she was reassigned to patrol, a role that required her to work weekend and night shifts and take a salary cut. Id. at *7-*8. The new position also required her to wear a ballistics vest, which caused her pain and interfered with her ability to breastfeed. When the plaintiff’s request for a temporary desk job was denied, she resigned. Id. at *8. Plaintiff brought claims under the FMLA and Title VII for sexual harassment and disparate treatment (based on the job reassignment and failure to accommodate lactation), and for constructive discharge. 

On a motion for summary judgment, the district court granted summary judgment to the defendant as to the plaintiff’s sexual harassment and FLSA Nursing Mothers Act claim, as well as her title VII “sex discrimination” claim and her failure to accommodate claim related to breastfeeding. However, the court denied summary judgment to defendants as to the claim of interference with FMLA and retaliation, noting that the plaintiff had received a cursory post-FMLA reinstatement for only seven days before being demoted. Id. at *23. It also denied summary judgment on the pregnancy discrimination claim related to her reassignment to patrol, finding that sufficient evidence to create a factual dispute as to whether she was reassigned due to post-partum depression, and whether the proffered explanation for her reassignment was pretextual. Id. at *26. Finally, the court denied summary judgment as to constructive discharge because the plaintiff “was placed in a position where she felt she had to choose between breastfeeding her child and protecting herself on the job.” Id. at *31.

A trial was held and in February 2016, the jury found for the plaintiff, awarding her $50,000 for discriminatory transfer under the Pregnancy Discrimination Act, $108,000 for her constructive discharge, $108,000 for retaliatory transfer under FMLA; and $108,000 in liquidated damages under FMLA. Hicks v. City of Tuscaloosa, No. 7:13-cv-02063-TMP, 2016 WL 1180119, at *3 (Mar. 28, 2016). After defendants objected to the verdict amount, the court reduced the award to $161,319.92 to eliminate double recovery ($50,000 for discriminatory transfer under the PDA, $108,000 for constructive discharge under the PDA, and $3,319.92 in liquidated damages FMLA). Id. at *8. Defendants moved for a new trial and for judgment as a matter of law; the court denied both motions. 

This appeal of that decision, followed. The appeal also challenges the jury instructions, arguing that the court failed to instruct the jury that it had to find that “each” of the reasons given for the adverse actions was pretextual, and that the jury was “required to focus on the animus of the decisionmaker” rather than imputing animus held by others to the chief who reassigned Hicks to patrol. 

The case is one of the first recent cases to reach an appellate court addressing pregnancy and lactation accommodation post-Young v. United Parcel Service, Inc., 135 S.Ct. 1338 (2015), and arises in a field where the National ACLU has developed considerable expertise – accommodations for pregnant or breastfeeding police officers. Although the court’s holdings that lactation and post-partum depression are covered under Title VII are not raised on this appeal, the case still presents a few legal issues worth addressing. These include (1) the level of similarity required of the comparator (e.g., defendants argue that Hicks failed to prove that “similarly situated Task Force agents failed to take over and begin working informants as instructed and were not subjected to adverse action” – essentially arguing that she needed to identify a comparator who was identical to her); (2) the standard for employer intent in a constructive discharge claim (defendants argue that the chief had to actually intend that Hicks quit, and that his act in meeting with her before she quit shows that he did not have that intent), and (3) the question of whether the situation of being forced to choose between continuation of breastfeeding and physical safety on the job would be intolerable to a reasonable person. The last point is particularly important to develop better case law on, in light of the bad decision in Ames v. Nationwide, 760 F.3d 763 (8th Cir. 2014), a case in which National also filed an amicus brief. 

The City opposed our motion for leave to file but the Eleventh Circuit granted our motion and accepted our brief for consideration. The Court then granted our request to participate in oral argument which was held in Montgomery on August 23, 2017. In a resounding victory for women’s rights, the Eleventh Circuit affirmed the verdict in favor of Ms. Hicks, recognizing a right to equal accommodation related to lactation.

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