Vivian Berger Mediator

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Hostile Workplaces

Special to The National Law Journal
December 4, 2006

Worldwit, a network for women in business and technology, declared Sept. 4-8 "National Breastfeeding at Work Week." The organization's purpose was "to promote full participation and equality for nursing women in the workplace." Although some progressive companies provide mother-friendly environments, many more businesses do not. Regrettably, the courts uniformly reject suits under current federal statutes to ban discrimination against, or require accommodations for, new mothers on the job; and laws in a mere nine states address the issue in any way. Therefore, we need national legislation to ensure that female employees do not have to choose between earning their living and fulfilling a natural function that is not only personally rewarding but also socially beneficial.

The American Academy of Pediatrics endorses breastfeeding "as the optimal form of nutrition for infants." Through the immunities it conveys, it increases the baby's capacity to ward off illness. It also improves maternal health and fosters the bond between mother and child. Indeed, outside the employment setting, the government has recognized these advantages. For instance, the law mandates that Women, Infants, and Children, a supplemental food program, encourage breastfeeding through provision of an enhanced food package to low-income nursing mothers. Further, a report of the U.S. Public Health Service, Healthy People 2010, has as one of its stated goals augmenting the percentage of women who breastfeed.

This concern has not, however, translated into a workplace welcome for lactating women. They often suffer insensitivity or outright hostility to their needs- from both employers and federal courts.

Those who ask for leaves longer than the law or company policy afford in order to feed the infant directly may find their requests denied. Others who wish to pump milk while on the job, for use later, may either be forbidden to do so or relegated to a rest room. Few get what they require: at the least, a private, pleasant, nontoilet space to express milk, two to three breaks of 20 minutes to a half-hour (in an eight-hour shift) and a clean refrigerated storage space. Only a handful of states now mandate such measures.

Myopic views of judges

Women who demand as of right what they cannot obtain by grace receive short shrift from the courts. Of the potentially applicable statutes, none is construed in a way that furnishes relevant relief. The Pregnancy Discrimination Act (PDA), a 1978 amendment to Title VII of the Civil Rights Act of 1964, forbids discrimination on the basis of "pregnancy, childbirth, or related medical conditions." Even though lactation results from bearing a child, judges myopically view nursing as a lifestyle choice rather than a covered condition. Moreover, in one obvious case of medical necessity-an infant with a cleft palate who could only breastfeed-the court held that the PDA did not extend to a claim based on the child's, rather than the mother's, problem. McNill v. NYC Dep't of Corr., 950 F. Supp. 564 (S.D.N.Y. 1996). Nor do courts regard the disparate impact branch of Title VII- which bans facially neutral practices having a disproportionate effect on protected groups-as encompassing breastfeeding issues, holding that it does not apply to discrimination based on a single-sex characteristic.

Two other federal laws invoked on behalf of nursing women are the Family and Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA). These statutes not only ban discrimination but also, in appropriate situations, require affirmative accommodations for safeguarded individuals. A mother may take 12 weeks of FMLA leave in order to care for her baby at home. Yet the law has significant limitations: She must have worked full-time for at least a year for a business with 50 or more employees. About one-half of female workers do not meet these prerequisites. Moreover, the leave does not have to be paid, so many women cannot afford it. And the FMLA does not address the needs of those who wish to-or must-return to the workplace. The ADA also offers no recourse because absent unusual situations, pregnancy and related conditions do not amount to a "disability."

Pending in Congress are two bills that seek to make expression of milk at work more feasible. H.R. 2122, sponsored by Representative Carolyn Maloney, D-N.Y., would declare that Title VII covers breastfeeding and would extend tax credits to employers who facilitate it. S. 1074, sponsored by Senator Tom Harkin, D-Iowa, would mandate that employers furnish "an appropriate lactation facility." Such measures have gone nowhere in the past. Enacting them would show a long overdue commitment to both motherhood and genuine workplace equality.