Breastfeeding mothers across the country are fighting for their rights at work. Recently American Civil Liberties Union (ACLU) and Equal Opportunity Employment Commission (EEOC) filed a civil suit on the behalf of a Pennsylvania mother against her employer for failing to follow the 2010 Affordable Care Act (ACA).
This is the first lawsuit brought by ACLU under the ACA’s breastfeeding provision, which is the first federal law that requires employers to accommodate nursing mothers on the job. This is also one of a growing number of lactation discrimination lawsuits highlighting the need for more accommodation and acceptance for nursing mothers in the workplace.
Despite overwhelming evidence supporting the health benefits of breastfeeding, mothers who choose to continue breastfeeding when they return to the paid workforce face insurmountable obstacles that can force them choose between their jobs and what is in the best interest of their babies.
In this case, for example, PA mother Bobbi Bockoras said that her employer, Saint-Gobain Verallia North America, did not offer her a clean, private, non-bathroom space to pump. She said that her supervisor first told her to pump in a bathroom, and then offered a locker room covered in dirt and dead bugs after she protested.
Prior to the ACA, the situation was even worse. Nursing mothers who wanted to pump at work had few rights. An employer could refuse to allow a mother to express milk at work or fire her for doing so.
For example, when Ohio mother LaNisa Aleen claimed she was fired by her employer, Totes/Isotoner, for taking pump breaks in 2009, the Ohio Supreme Court ruled in favor of the employer.
And when Texas mother Donnicia Venters claimed that she was fired in 2009 for requesting to express breast milk on the job, the U.S. District Judge Lynn Hughes decided that “lactation is not pregnancy, childbirth, or a related medical condition, and thus not protected from sex discrimination.”
Now the tide may be turning in favor of nursing mothers. Last year an appeals court unanimously overturned Hughes’ ruling in the Venters case. Three judges affirmed that lactation is a result of pregnancy and therefore, nursing mothers are protected under sex discrimination laws at work.
Under the ACA provision, which amends the Fair Labor Standards Act, companies are now required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth” and “a place, other than a bathroom, that is shield from view and free from intrusion.” The provision also prohibits retaliation by companies when employees file complaints.
Here in California, nursing mothers are even better protected. The ACA provision only applies to companies who employ 50 workers or more, and only protects hourly workers, not salaried ones. However, California labor code actually requires “every employer” to provide break time to accommodate an employee desiring to express breast milk for her infant child, and make efforts to provide the employee with the use of a room to express milk in private.
Further, the ACA provision includes no penalty for businesses that don’t comply. But an employer who violates the CA labor code is subject to a civil penalty.
As more women become aware of their rights under the law, we hope more working mothers will exercise their rights and continue breastfeeding after returning to work. One mother’s fight will help make breastfeeding easier for other working mothers, and help form a more baby friendly nation.
TO-WEN TSENG 曾多聞