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Breastfeeding-Related Discrimination Should Be Protected By Law (Even if Men Can Lactate)

Angela Ames resigned from her position at Nationwide Mutual Insurance Company just three hours after she returned from maternity leave.  Upon her return, she sought access to the company’s lactation rooms and was informed that she would have to wait three days for permission to use a room.  She was also told that since none of her work had been completed during her maternity leave, she would have to complete eight weeks worth of work during her first two weeks back or face discipline.  When she asked her manager to help her find a place to pump milk, the manager told Ames, “You know, I think it’s best that you go home to be with your babies,” handed Ames a piece of paper and a pen, and dictated what she should write in her resignation letter.

Ames resigned, and both a federal trial court and a federal appeals court threw out Ames’ discrimination case.  These decisions relied in large part on the fact that Ames failed to stay in her job and fight the treatment she was receiving.  The trial court, however, also concluded that lactation is not a pregnancy-related condition – and therefore not protected by the Pregnancy Discrimination Act – because some men can lactate.  When the Supreme Court recently refused to hear Ames’ case, it was male lactation that attracted numerous headlines.  The Supreme Court, however, was not asked to weigh in on male lactation.  It was asked to consider whether the appeals court correctly assessed when an employee can hold an employer liable for forcing her to quit, and – as in the vast majority of cases that come before it – the Supreme Court declined to review the case.

In July 2014, well after the trial court issued its decision in Ames’ case, the federal Equal Employment Opportunity Commission (EEOC) made clear  that lactation is a pregnancy-related medical condition and that treating an employee less favorably because she is breastfeeding is therefore discrimination.  Likewise, harassing an employee because of her breastfeeding is illegal if the harassment is severe or pervasive.  Any workplace policy or practice that singles out breastfeeding for less favorable treatment is discrimination because, the EEOC notes, breastfeeding is a condition that only affects women.  It would, for example, violate Title VII, to permit an employee to use her break time for personal reasons, but to have a policy preventing her from pumping or expressing milk during her break time.

While the EEOC and many courts now recognize that Title VII protects employees from lactation-related discrimination, some courts – as the Ames trial court decision illustrates – remain notably dismissive of such claims.  The Ames trial court commented that, “[t]o many” – including, it would appear, the judge who decided Ames’ case – “expressing breast milk in the workplace is incompatible with the desire to pursue a successful career.”  The trial court, moreover, simply refused to recognize a link between lactation and pregnancy: “lactation is not a physiological condition experienced exclusively by women who have recently given birth,” because men and adoptive mothers can sometimes lactate.  (Ironically, in past cases, some courts have rejected certain lactation-related claims precisely because men cannot lactate.)  The court also highlighted the fact that there is choice in a woman’s continuing lactation; the court noted that lactation might be protected where it was purely a medical condition and not related to “a desire to breastfeed,” but because Ames had expressed her “desire to pump milk as a form of nutrition for her newborn son,” her choice was not legally protected.  Finally, the trial judge concluded that the comment by Ames’ manager that she should go home to her babies – a comment made, it must be emphasized, in the context of a conversation about Ames’ lactation needs – was not evidence of gender discrimination because it was a gender-neutral statement based on Ames’ “gender-neutral status as a new parent.”

While the Ames trial court decision is particularly egregious, it follows and builds upon prior decisions in which courts have attempted to separate lactation from gender or pregnancy.  It is worth remembering that the Supreme Court once similarly separated pregnancy from gender in a case where the Court concluded that discrimination on the basis of pregnancy was not sex discrimination because a pregnancy-based distinction drew a line between pregnant women on the one hand and non-pregnant men and women on the other hand.  While that decision was immediately overturned when Congress passed the Pregnancy Discrimination Act (PDA) in 1978, echoes of this reasoning linger in court decisions today that seek to separate certain forms of pregnancy-related discrimination from pregnancy or gender.  Thus, in the Ames case, the trial court repeatedly used the possibility of male participation to separate certain conduct from pregnancy and gender.  Pointing to the possibility of lactating males, the trial court willfully ignored the fact that lactation most commonly occurs in postpartum women who are breastfeeding infants, and describing infant care as gender neutral, the trial court willfully ignored the fact that infant care is still performed primarily by women and is still stereotyped as a woman’s job.  (While men face discrimination when they assume a caregiving role for young infants, discrimination claims on behalf of men are generally framed as claims based on men’s failure to conform to gender norms , the argument being that men who care for infants are being discriminated against for defying society’s expectations that they will not engage in such care; claims on behalf of women caring for infants generally point to sex stereotyping and societal expectations that women will care for babies.)

As the EEOC and several federal courts have concluded, lactation-related claims should generally be covered by Title VII.  The Patient Protection and Affordable Care Act (“Obamacare”) has also added further protections for women who need “reasonable break time” in order to pump or express milk.  Advocates for employees and breastfeeding women can and will continue to fight to ensure that women’s rights under Title VII and other laws are protected and that courts recognize and effectuate these rights.

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