Does Federal Law Prohibit Lactation Retaliation?

Posted by Adria MartinelliOn February 10, 2012In: Pregnancy (Title VII)

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I recently saw an article in the ABA Journal about a mom who allegedly was fired for wanting to breastfeed at work. The federal judge in the Southern District of Texas concluded in that case that lactation is not "pregnancy, childbirth, or related medical condition" under Title VII, and therefore discrimination on that basis does not constitute sex discrimination. While I strongly disagree with that conclusion, she is not the first judge to draw this conclusion.

The Ohio state judge in the Isotoner decision reasoned that lactation was not "pregnancy related," because a woman could choose to stop it if she wanted to. It is interesting that courts have interpreted "pregnancy-related conditions" broadly in other areas - for instance concluding that not being pregnant is pregnancy-related, yet seem to struggle with the notion that breastfeeding is pregnancy-related.

I suggested in my earlier post that, in light of the existing case law, Congress needs to fix the problem by enacting legislation to make clear that breastfeeding is protected activity. Congress acted. Effective March 23, 2010, the Patient Protection and Affordable Care Act (PPACA) amended the Fair Labor Standards Act to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk. See our earlier post on the FLSA Amendment.

My initial thought upon reading the recent Texas decision was that if the relevant events had occurred after this amendment, the plaintiff may have gotten further with her claim that she was discriminated against for wanting to nurse her newborn. (There are lots of reasons her claim could fail, including if she was terminated for another reason, she was an exempt employee and therefore not covered by FLSA, or the employer had fewer than 50 employees and could therefore assert providing nursing facilities was an "undue hardship" under the amendment). But let's assume for purposes of discussion, that the plaintiff was indeed terminated for asking about where she could pump breast milk, covered under the FLSA amendment, and the company decided they did not want to deal with the hassle. Surely, that would be illegal under the FLSA amendment, right?

The answer is not as obvious as one might think. The amendment related to nursing contains no language regarding retaliation. The retaliation provisions within the broader FLSA statute extend protection only to employees who have "filed a complaint or instituted or caused to be instituted any proceeding under or related to the [FLSA], or has testified or about to testify in any such proceeding." 29 U.S.C. §215(a)(3). This would not protect the plaintiff in the Texas case, who evidently did not lodge any complaints regarding her nursing until she filed her complaint in federal court over her termination.

At least 24 states have their own laws protecting breastfeeding at work. Many include more broad retaliation protection language than FLSA provides. For instance, Maine's law, which require that employers provide similar break times and locations as the federal law, also states that "a]n employer shall not retaliate or discriminate against an employee who exercises the right provided under this section."

If a woman is unfortunate enough to reside in any of the 26 states without such laws, the nursing provisions of the new PPACA law appear to leave a nursing mom exposed, so to speak. Her employer could be required to provide nursing facilities and appropriate breaks under federal law. Instead of complying with that law, an employer could decide merely to terminate the employee because it does not want to deal with the hassle. There appears to be little to protect such a woman under federal law, unless she has registered a "complaint" under FLSA.

The right to breastfeed at work does not fit neatly into existing statutory language. The law needs to be amended in order to protect nursing mothers from retaliation for choosing to exercise their rights under FLSA to take nursing breaks in a designated space. Until that is done, unless the mother complains about the lack of facilities or the failure to give her break time as required under the statute, it appears there is little to protect her if she is terminated for exercising or planning to exercise her rights to pump breastmilk at work.

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