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Pumping on the Job -The Rights of Breastfeeding Employees

Posted April 12th, 2017 by in Gender Discrimination and Harassment.

Breastfeeding employees frequently encounter barriers in the workplace that impede their ability to pump on the job. Horror stories abound of women who are denied a clean, private space to pump or who are shamed and penalized for pumping at work. Thanks to the advent of federal and state legislation and an emerging body of case law, nursing mothers, and their employment lawyers, now have more mechanisms to fight back in the face of pumping discrimination.

Up until 2010, there was no federal law requiring employers to provide pumping accommodations for breastfeeding employees. Effective March 2010, however, the Affordable Care Act amended Section 7 of the Fair Labor Standards Act (“FLSA”) to mandate certain protections for breastfeeding employees. This federal law, known as the Break Time for Nursing Mothers provision, requires that employers subject to the FLSA provide breastfeeding employees with a reasonable amount of break time to express breast milk.  Employers are required to provide break time to a breastfeeding employee for up to one year after the child’s birth. The law also requires employers to provide a location for employees to express breast milk that is free from any intrusion from the public or from co-workers, shielded from view, and functional as a space for pumping milk. The law expressly provides that a bathroom, even a private one, is not a permissible location.

Employees who believe that their rights under this law have been violated can file a complaint directly with the Wage and Hour Division of the Department of Labor, which is responsible for administering and enforcing the Break Time for Nursing Mothers provision. Between 2010, when the Affordable Care Act was enacted, and 2014, the Wage and Hour Division completed 169 investigations in connection with the nursing mothers provision and found 71 violations of this law.

Unfortunately, the Break Time for Nursing Mothers provision applies only to employers who are subject to the FLSA and does not protect employees who are exempt from the FLSA’s overtime requirements, thus excluding a large swath of working mothers. That said, there is a growing patchwork of state laws providing protections for breastfeeding employees. Currently, Washington D.C., Puerto Rico, and twenty-eight states (Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New Hampshire, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, Washington and Wyoming) have their own laws regarding pumping in the workplace.

Several state laws confer greater protections than the Break Time for Nursing Mothers provision in that they apply to employees that fall outside the ambit of the FLSA provision, and they mandate more comprehensive protections for nursing mothers. New York law, for example, requires all public and private employers in the state to provide a reasonable amount of break time to nursing mothers for up to three years following childbirth, as opposed to just one year. The law extends beyond imposing a duty to accommodate, as it also prohibits discrimination against employees for pumping at work.

Although federal law now imposes a duty to accommodate upon many employers, no federal law expressly prohibits discrimination against employees for pumping in the workplace. Moreover, only a handful of states mirrors New York in prohibiting pumping discrimination. Still, there is an emerging body of case law recognizing that pumping discrimination constitutes sex and pregnancy discrimination in violation of Title VII and the Pregnancy Discrimination Act (“PDA”).

Just a few years ago, for example, the Fifth Circuit in EEOC v. Houston Funding II weighed in on a pregnancy and sex discrimination case brought by the EEOC on behalf of a female employee who was terminated after asking her employers if she could use a back room to pump at work. As a preliminary matter, the Fifth Circuit recognized that terminating an employee because she is lactating or pumping breast milk amounts to sex discrimination in violation of Title VII. As the Fifth Circuit reasoned, “[a]n adverse employment action motivated by these factors clearly imposes upon women a burden that male employees need not—indeed, could not—suffer.” The Fifth Circuit also concluded that discriminating against an employee who is lactating or expressing breast milk violates the PDA. In arriving at this conclusion, the Fifth Circuit considered the fact that “lactation is a physiological result of being pregnant and bearing a child” and held that “lactation is a related medical condition for purposes of the PDA.” While some courts have diverged from the Fifth Circuit, several federal district courts across the country, including in New York, Colorado, and Washington, DC have followed the Fifth Circuit in recognizing pumping discrimination as illegal employee discrimination in violation of Title VII and the PDA.

Over the last decade, the number of breastfeeding-related discrimination cases has spiked by 800 percent. This number is only bound to increase with the growing judicial and legislative recognition of breastfeeding employees’ rights in the workplace.

If you have questions about your right to pump in the workplace, you should consult with an experienced gender discrimination lawyer at Sanford Heisler Sharp, LLP.

Melinda Koster

Melinda Koster

Melinda Koster is a Senior Litigation Counsel in Sanford Heisler Sharp’s New York Office who represents employees with a wide range of claims, including discrimination on the basis of gender, pregnancy, and age, in both public litigation and privately negotiated settlements. Learn More

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