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SPLF Employment Blog

Breast-Feeding

Breast-Feeding

Marie is a woman who is breast-feeding her child and working full time. This means that Marie frequently needs to pump at work. However, her employer makes her pump in a bathroom and often limits the amount of breaks that Marie may take to pump. Is this legal?

Usually, this behavior is illegal. The Fair Labor Standards Act (FLSA) requires that an employer provide reasonable, unpaid breaks and a private place other than a bathroom for a mother to express breast milk for up to one year following the birth of a child. However, if the employer has fewer than fifty employees, and the employer can show that allowing a mother to pump would cause an undue hardship, significant difficulty, or substantial expense (in relation to the employer’s size and financial resources), then the employer is not required to permit pumping breaks. Additionally, if your employer is required to give you breaks for pumping, then it is prohibited from retaliating against you for taking advantage of those breaks. You can learn more that the website for the U.S. Department of Labor (http://www.dol.gov/whd/nursingmothers/).

Some states require additional protections for breast-feeding mothers. For example, California requires that breast-feeding mothers be allowed “reasonable accommodations” similar to those with disabilities, including accommodations such as a modified work schedule and job restructuring. New York expands on the FLSA regulations and requires that a mother be provided pumping breaks for up to three years following the birth of her child instead of just one year. Moreover, the Affordable Care Act, also known as “Obamacare,” requires that employers provide a place for mothers to pump and follows the requirements under the FLSA closely.

Additionally, while it is an emerging area of the law, many courts are recognizing breastfeeding as being related to gender discrimination under Title VII and include breast-feeding discrimination as a form of gender and pregnancy discrimination. Recently, a woman in Texas was fired after requesting time to pump at work twice. In EEOC v. Houston Funding II, Ltd., the Fifth Circuit ruled that breast-feeding discrimination violates Title VII because breastfeeding is “a medical condition related to pregnancy and childbirth.” This seems logical enough, and the court made its decision based on the dictionary definition of lactation, which is “the physiological process of secreting milk from mammary glands and is directly caused by hormonal changes associated with pregnancy and childbirth.”

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