Employment law is a weird field to practice in. Just because something is obvious doesn’t necessarily mean the courts are going to find that it’s so. A recent case is a prime example of the Twilight Zone that is employment law. The judge in that case ruled, “lactation is not pregnancy, childbirth, or a related medical condition.” Really?
Okay, so when I managed to nurse my two children, the milk that miraculously emerged from my body had nothing to do with having been pregnant or having given birth. Good to know. Better toss all those What to Expect When You’re Expecting books now, because the judge says they’re all wrong. The court didn’t say what they thought did cause lactation. I’m waiting with bated breath for that decision.
Backing up, I guess I’d better tell you what the case was about. A woman went on approved maternity leave. When she was ready to return, she mentioned that she wondered if she could use a back room to pump milk. Suddenly, her boss hemmed and hawed and said they’d filled her job because she’d abandoned her position. I can just see him shuddering. Breast pumping? Eww. Gross.
Long story short, she lost her case for pregnancy discrimination. The law says that discrimination because of pregnancy, childbirth, or a related medical condition is illegal. EEOC was pretty sure that lactation was related to pregnancy or childbirth (probably because of all those pesky books that said so). So they sued on her behalf.
The law, at least in the Southern District of Texas, is that, "Even if the company's claim that she was fired for abandonment is meant to hide the real reason - she wanted to pump breast-milk - lactation is not pregnancy, childbirth, or a related medical condition." Courts in the 4th Circuit, 5th Circuit, 6th Circuit, and Colorado have also declined to find Title VII/Pregnancy Discrimination Act protection for nursing mothers under various circumstances.
Fortunately, this case involved a firing that happened in 2008. Yes, the justice system is ridiculously slow (she didn’t even get to trial in all that time – this was a summary judgment). Things have changed a bit since 2008, thank goodness. Twenty-four states have laws protecting women from breastfeeding discrimination at work. Congress finally woke up in 2010 and passed the Patient Protection and Affordable Care Act which, among other things amended the Fair Labor Standards Act (FLSA) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express milk, and a private place other than a bathroom for her to do so.This new law only applies to employees who are not exempt from overtime.
Exempt employees in 26 states (my own Florida being one) are still apparently in the Twilight Zone where they may be subject to lactation discrimination if the judges in their state think lactation isn't caused by pregnancy or childbirth.
Donna’s tips:
a. If you are on maternity leave and getting ready to return, don’t assume that you can’t be fired for breast pumping.
b. If you are salaried and your employer considers you exempt from overtime, you might not be protected under FLSA. However, many employees are misclassified. If your employer gets this wrong, you might also have overtime claims as well as claims for breastfeeding discrimination.
What can often happen in mediation and conflict is a kind of lull where both sides are caught in an internal struggle. These can sometimes come down to that “bottom line” part of the argument or sometimes it's at the very beginning where the stakes have just been laid down for the very first time. When this happens, both sides tend to shut off and re-evaluate their standpoint. What needs to be remembered in this time, however, is that often during those cases where both sides are struggling, the point of back-into-wall may change.
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