Tuesday, September 1, 2009

Lactation, Breastfeeding, Discrimination and Accommodation

Breastfeeding In the last few weeks, there have been a couple of interesting developments in the nursing woman/sex discrimination area. In San Francisco, the California State Fair Employment and Housing Commission fined a taqueria owner $46,000, finding that he fired an employee for nursing her newborn in a car in the parking lot on a break. The Commission found that terminating an employee because she is breastfeeding is discrimination on the basis of sex as a matter of California state law. Bolstering the Commission's decision, California has a law that requires employers to provide a reasonable amount of break time for an employee who wants to breastfeed an infant child, unless a break would seriously disrupt the employer's operations. California also allows a mother to breastfeed her child "in any location, public or private." For articles reporting on this case see the Washington Post here and the San Francisco Chronicle here.

Late last week, the Ohio Supreme Court seems to have come out the other way as a matter of Ohio law in Allen v. Totes/Isotoner. The plaintiff in that case had to take "extra, unauthorized breaks" to pump milk for her 5-month old infant. The majority of the Ohio Supreme Court seems to have found that she was fired for taking those breaks unauthorizedly rather than because she took them to pump breastmilk. She claimed that her termination was discrimination on the basis of a condition related to pregnancy and thus sex discrimination under Ohio Law or discrimination on the basis of disability, The trial court had held that she

gave birth over five months prior to her termination from [Isotoner]. Pregnant [women] who give birth and chose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, [the plaintiff's] condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination. See Derungs v. Wal-Mart Stores Inc., 374 F.3d 428, 439 (6th Cir. 2004).

Derungs was a public accommodations case, rather than a Title VII case, and the court there dealt with a statute unamended by the Pregnancy Discrimination Act, but the reasoning of the trial court seems to have extended beyond that--Ohio law has a PDA provision that prohibits discrimination on the basis of pregnancy or a condition related to pregnancy.

In any event, two concurring Justices wrote a more lengthy analysis of the discrimination claim, finding that pregnancy and lactation are not disabilities under Ohio law because they are temporary conditions. The concurrence would also have found that although the plaintiff was affected by a condition related to pregnancy, she was fired for taking unauthorized work breaks not because of her status as a lactating woman. Although the issue was not put in accommodation terms, the court dismissed a potential accommodation argument by saying that "[t]he FEPA and the PDA mandate that an employer treat pregnancy with neutrality, but not preferentially."

The plaintiff also presented evidence that other employees were allowed to take unauthorized breaks throughout the workday to use the restroom. The concurrers dismissed that argument, stating that she had not provided evidence that any other employees had taken regular 15 minute breaks throughout the workday to do so.

The lone dissenting justice pointed out the flaw in that logic, stating that the appellate court, and presumably the concurrence,

does not explain why [the plaintiff's] trips to the restroom outside scheduled break times were different from the restroom trips other employees made outside scheduled break times. There is no evidence in the record about any limit on the length of unscheduled restroom breaks and no evidence that employees had to seek permission from a supervisor to take an unscheduled restroom break. There is evidence only that unscheduled bathroom breaks were allowed and that [the plaintiff] was fired for taking them. What made her breaks different?

It seems to me that the California Commission got it right and Ohio Supreme Court got the sex discrimination analysis wrong--both on the accommodations issue for nursing women and on the disparate treatment of unauthorized breaks issue. The logic seems much like the Supreme Court's logic in Gilbert (focusing on special treatment and choices) and the arguments against disparate impact discrimination. For a bit more on the accommodations issue, see Bridget Crawford's post at Feminist Law Profs. And this case compared with the California case demonstrates why we need statutes mandating breastfeeding accommodation.

Update: For highly entertaining and insightful commentary on the Ohio decision, check out Connie Schultz's editorial in the Cleveland Plain Dealer.



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thanks marcia for posting this, very relevant as i am still nursing and back to work teaching employment law :)

Posted by: orly lobel | Sep 1, 2009 10:42:42 AM

I thoroughly enjoy your blog. I refer to it pretty often in my own blog at www.sanantonioemploymentlawblog.com
You all consistently produce some well balanced analysis of labor & employment law developments. Good job.

Posted by: Tom Crane | Sep 1, 2009 3:48:11 PM

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