Working for Justice

The “Men can lactate, too” Defense

Angela Ames, a Nationwide Insurance worker in Iowa, returned to work in July 2010, after her eight-week maternity leave, and found that she had no place to pump breast milk.  She was told that there was a three-day waiting period to process her paperwork in order to use the lactation room and was given the option to pump in the wellness room, which she was told may not be sanitary because it was occupied by a sick employee.  When she protested, she was told that she should “just go home and be with [her] babies.”  Her supervisor went on to dictate her letter of resignation, effectively coercing her to resign, but only after demanding that she make up all the work she missed during her maternity leave.  The district court decision, which the Eighth Circuit Court, made up of three men, did not overturn, dismissed her case and declared that firing a woman for breastfeeding isn’t sexist because men can lactate, too.  Last week, the Supreme Court effectively sent Ames home too by rejecting to review the dismissal of her case.

Even though this is, apparently, medically true, we all know this doesn’t reflect the reality of who does the work of breastfeeding babies.

The ACLU’s Galen Sherwin eloquently stated that the case “shines a harsh light on the multi-layered workings of structural discrimination: Workplace policies that don’t make space for the realities of pregnancy and motherhood, employers’ entrenched sex stereotypes and implicit bias, and courts that — despite decades-old legal protections — still manage to turn a blind eye to the pervasive discrimination faced every day by working women.”  Many people, including many in the medical community, have worked to establish breastfeeding as the optimal choice over formula feeding – so why not create a space in which working women can do so?  How is it possible that in the year 2015 we are still struggling to find a place for women to use a breast pump, a medical device that was invented in 1854?

As Carole Grace Hurst explains in “Constraints on Breastfeeding Choices for Low Income Mothers”, breastfeeding is said to offer infants numerous health benefits including,

“[p]rotection from the common cold, ear infections, diarrhea, bacterial meningitis, and allergies as well as lowered risk of sudden infant death syndrome, postneonatal mortality, asthma, cancer, diabetes, and childhood obesity.”

However, the socio-cultural construction of breastfeeding in the United States often denies women, particularly racial and ethnic minorities, the choice to breastfeed, which can lead to potential serious health issues for the mother and child.

One of the major reasons for racial and ethnic disparities in rates of breastfeeding is that many women of color have less financial flexibility and so must return to work environments that don’t facilitate breastfeeding.  The Centers for Disease Control and Prevention found that the “prevalence of breastfeeding initiation in 2000 was 47.4% among blacks, 71.8% among whites, and 77.6% among Hispanics. By 2008, the percentage of infants who ever breastfed had increased among blacks to 58.9% and among whites to 75.2%; an 80.0% prevalence among Hispanics did not amount to a statistically significant increase.”

While the breastfeeding gap has narrowed, there is still a long way to go.

As the Eighth Circuit’s most recent decision on this highlights, women are unfortunately still facing discrimination and harassment in their workplaces, and that, in turn, understandably dissuades women from choosing to breastfeed.  But it isn’t just hostility to breastfeeding women, it is also structural hurdles that create problems too, hurdles like not having a place to keep breast milk cool or not letting women take their breaks when nature dictates it is time to pump.

So what can we do?  For starters, we can provide women with a comfortable and safe space to breastfeed and pump.  We can provide a place to store breast milk.  We can target sexist attitudes that stigmatize breastfeeding.  We can increase the visibility of breastfeeding in the mainstream media to enable it to become familiar.  But most of all, we can challenge ourselves to unlearn the cultural taboos that we have internalized.  Removing these barriers will provide ample opportunity for upcoming generations, who would like to breastfeed, with a realistic option to do so.  It is time to shift the reality of breastfeeding from a class and race-based privilege to a realistic choice for all working mothers.

The personal is political!  Breastfeeding is a personal decision yet for each woman to have a tangible choice, structural economic, medical, and legal barriers must be deconstructed.  To learn about your right to pump during work hours, I recommend looking at the ACLU’s “Know Your Rights: Pregnant, Post-Partum & Breastfeeding Workers” website.  Additionally, this helpful link from Womenshealth.gov discusses breastfeeding when returning to work and includes a sample letter that you can give to your supervisor about your breastfeeding needs.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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