Despite the passage of The Patient Protection and Affordable Care Act of 2010 (PPACA), women who wish to continue breastfeeding after returning to work still face hostility and discrimination with respect to their lactation needs. Indeed, although the PPACA requires an employer to provide reasonable accommodations for some nursing moms, it does not explicitly prohibit discrimination on the basis of lactation. Thus, a breastfeeding worker’s rights are limited. However, due to recent litigation, these women are not without recourse. In fact, many have turned to either state law or federal law, such as the Pregnancy Discrimination Act of 1978 (PDA), for enforcement of their right to lactation accommodations at work.
In 2012, Angela Ames sued her employer in federal court, after being denied a place to pump breast milk at work. In her complaint, Ames alleged she suffered unlawful retaliation when she complained that her supervisor told her that it was “best” that she “go home to be with her babies,” and ultimately coerced, by this same supervisor, to resign.
However, Ames’ complaint was dismissed by the trial court. The court found that lactation is not a medical condition exclusive to women, who have recently given birth, but could occur in women, who have not experienced childbirth and even in some men. Thus, the court concluded that even if Ames’ termination was due to her lactation needs, such firing did not constitute gender or pregnancy discrimination. Additionally, the Court held that Ames’ failure to utilize the company’s internal complaint procedure, before resigning, prevented the company from addressing her requested accommodations and discriminatory treatment. On appeal, the Eighth Circuit Court of Appeals upheld the dismissal of Ames’ complaint on the ground that she failed to utilize the employer’s internal procedures before bringing a lawsuit. Ames appealed again to the United States Supreme Court, which declined to hear her case earlier this year. Thus, the question of whether lactation discrimination constitutes gender discrimination was not reached by our highest court.
Nonetheless, Ames’ case seems to have spawned a possible change in judicial attitude, as reflected by the Fifth Circuit Court of Appeals’ decision, in EEOC v. Houston Funding II, LLC. There, the court specifically held that discrimination because of breastfeeding or lactation is a form of sex-based discrimination and is prohibited by the PDA. The court pointed out that lactation is a natural, biological condition of pregnancy and that “firing a woman because she is expressing milk is unlawful sex discrimination, since men as a matter of biology could not be fired for such a reason.” Consequently, the plaintiff, a Texas woman, was able to reach an out-of-court settlement on the eve of trial.
Subsequent the American Civil Liberties Union (ACLU) and Equal Employment Opportunity Commission (EEOC) initiated a lawsuit in November 2013 on behalf of a Pennsylvania working mother, Bobbi Bockoras, for gender discrimination. In this case, Ms. Bockoras returned to work from maternity leave to be allegedly told by her employer that she had to pump breast milk in the bathroom. The PPACA requires that employers make reasonable efforts to provide a private space, other than a bathroom, where breastfeeding mothers may express milk. The PPACA further requires that employers provide a space that is “private, shielded from view, and free from intrusion for qualifying employees to pump breast milk.” Ms. Bockoras complained, and the employer responded with allowing her to use a dirty, bug infested, and non-air conditioned locker room, according to the Complaint. The Complaint alleged further bad acts by co-workers and the case ultimately settled in 2014.
In the end, with new case law and increased litigation, the rights of breastfeeding mothers in the workplace remain … fertile ground.
By Sally A. Sattan, Esq. and Ty Hyderally, Esq.