breastfeeding in the workplace

Earlier this year, New Jersey enacted a law to protect breastfeeding employees and require employers to provide certain accommodations to breastfeeding employees.

Notably, this law required reasonable accommodations as a general matter but also noted that reasonable accommodation “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk.”  Employers are therefore required to provide reasonable accommodation generally, which must include but is not necessarily limited to this particular accommodation, unless they can demonstrate undue hardship.

On October 29, 2018, a group of New Jersey state legislators introduced a bill (A-4686) to expand the scope of required accommodations to breastfeeding employees.  The bill makes four changes to current law.

First, current law applies the accommodation obligation to an “employee breast feeding her infant child.”  A-4686 removes the word infant, clarifying that this obligation applies to breastfeeding beyond infancy.

Second, the bill notes that the reasonable break time accommodation should be “for such time as the employee desires.”

Third, the bill adds a second specific required accommodation to employers, which would be required to provide “a modified work schedule” to the employee.

Fourth, the bill clarifies that a restroom (as opposed to merely a toilet stall) is not an acceptable location for an employer to provide to an employee for the purpose of expressing breast milk.

While the proposed language changes are short, this bill represents a significant expansion of employers’ accommodation obligations.  We’ll keep an eye on this piece of legislation as it moves through the legislative session and update on any new developments.

In the meantime, New Jersey employers should review policies and practices to make sure they incorporate the requirements of the law enacted earlier this year.

On June 3d we wrote our final post about the contentious “Great Texas Lactation Case” – where a Texas federal judge held that a woman who claimed to have been fired for seeking to pump breast milk while on the job had no viable claim under Title VII’s prohibition (found in the “Pregnancy Discrimination Act,” or PDA) against discrimination based upon pregnancy, childbirth or a related medical condition.

The Texas judge famously (notoriously?) held that: “Lactation is not pregnancy, childbirth, or a related medical condition,” and stated curtly that after plaintiff gave birth, “she was no longer pregnant and her pregnancy-related conditions ended.”

The EEOC appealed the decision and we predicted a reversal.  Numerous organizations such as The Texas Pediatric Society and the Texas Medical Association filed a “friend of the court brief” in support of the EEOC’s appeal, arguing that “since the yielding of milk by mammary glands is a medical condition caused by pregnancy and childbirth, lactation is a ‘related medical condition’ as contemplated by Title VII.”

The Court of Appeals reversed in a short opinion that affirmed the broad reach of the PDA. It held that ‘The EEOC’s argument that Houston Funding discharged [the employee] because she was lactating or expressing breast milk states a cognizable Title VII sex discrimination case.” Moreover, the Court also held that “lactation is a related medical condition of pregnancy for purposes of the PDA.”

Citing the Houston Funding case, a federal court in Kansas has just ruled that female employees of a District Attorneys’ office stated a legal claim for retaliation for complaining about the office’s failure to provide an appropriate place for breast-feeding or pumping.

This case is a little more nuanced than the Great Texas Lactation Case.  In this case, the defendant contended both that a failure to accommodate breastfeeding does not violate Title VII, and that, therefore, there could be no retaliation as a matter of law since the employees could not have had a reasonable, good faith belief that the office’s conduct was violative of Title VII.

However, the Court held that plaintiffs reasonably believed that not providing a place to breast-feed violated Title VII, even if not providing a place to breast-feed did not violate Title VII.  Got that?

The Court:  “Even if the failure to provide breast feeding accommodations does not violate Title VII, it does not necessarily follow that as a matter of law, plaintiffs did not have a reasonable good-faith belief that defendants’ conduct was discriminatory. … The standard has subjective and objective components, i.e. that plaintiffs subjectively believed that practice was unlawful and that the belief was objectively reasonable in light of the facts and record presented. … Accepting plaintiffs’ factual allegations as true, they plausibly give rise to a claim that plaintiffs had a reasonable belief that the alleged conduct was unlawful.”

The law marches on slowly but with determination.

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We reported last week that the EEOC filed an appeal to the federal court of appeals seeking a reversal of the decision of a Texas judge who denied the Title VII claim of a woman who alleged that she was fired for seeking to pump breast milk while on the job, stating that "Lactation is not pregnancy, childbirth, or a related medical condition."

*We can now report that in a “friend of the court brief” submitted by the Texas Pediatric Society and the Texas Medical Association in support of the EEOC’s appeal, the two medical societies have rebuked the trial judge by contending (as our headline notes) that “since the yielding of milk by mammary glands is a medical condition caused by pregnancy and childbirth, lactation is a ‘related medical condition’ as contemplated by Title VII”

We are more convinced now that a reversal will be the result of the appeal.
 

In our February 16th blog, we reported that a Texas federal judge recently stated, in denying the Title VII claim of a woman who alleged that she was fired for seeking to pump breast milk while on the job, that "Lactation is not pregnancy, childbirth, or a related medical condition."   We suggested in our February 9th blog, that an appeal and reversal was likely, and that “this decision was headed for the dustbin of history.”  See Judy Greenwald’s well-written article in Business Insurance, 2/10/12.

Just yesterday, the EEOC indeed filed an appeal to the federal court of appeals seeking a reversal of this decision, arguing that the Pregnancy Discrimination Act and Title VII protect women from being fired for lactation and breast pumping.

The EEOC argued, first, that the lower court’s interpretation of the Pregnancy Discrimination Act was too restricted and narrow.  Second, the EEOC claimed that, in any event, discrimination based on lactation violates Title VII’s prohibition against sex discrimination because lactation is a normal bodily function that is unique to women, i.e., that it is discrimination based on a sex-specific trait. 

We are one for one on this case so far — an appeal was filed.  Let’s see what happens and if we were right about a reversal.  I am doubling down on this bet.