We’ve previously discussed some of the challenges breastfeeding mothers face in the workplace. Our blog post titled “Breastfeeding Challenges for New Mothers Who Work Full-Time” examines laws and on-the-job difficulties employees encounter when breastfeeding or expressing milk.
Currently, many breastfeeding mothers have a difficult road ahead of them. However, this shouldn’t stop an employee from asking her employer for workplace accommodations so she can breastfeed and/or pump while on the job. But what happens if the employer punishes the employee for making this request or for complaining about her employer’s inflexible breastfeeding policy?
The answer is that the employee could sue for retaliation, although based on the case discussed below, it will not be easy to succeed.
Frederick v. State of New Hampshire
Katherine Frederick
worked for the New Hampshire Department of Health and Human Services (DHHS). Soon after starting her job at DHHS, she gave birth to a baby boy. Her pregnancy was filled with complications and, after giving birth, her son could not be fed from a bottle, requiring Frederick to provide all of his nutrition through breastfeeding.
For about one week before, and several months after the birth of her son, Frederick used leave under the Family and Medical Leave Act of 1993 (FMLA). About two months after giving birth, Frederick’s doctor cleared her to return to work, but only on a part-time basis and only if she could breastfeed her son.
Before returning to work, Frederick informed her supervisor that she would need 30 minutes (instead of the usual 15) of break time each day so she could leave the office to breastfeed her son at a nearby daycare. Frederick’s supervisor refused this request, explaining that additional break time would not be provided, that it was employer policy not to allow employees to leave work grounds during their break time, and that a lactation room was already provided for employees to privately pump breast milk.
A few days later, DHHS slightly modified its position, telling Frederick that she could have additional break time, but she could not leave the grounds to breastfeed her son. DHHS also explained that Frederick would not be permitted to arrange for her son to be brought to her at work so she could breastfeed him in the lactation room.
Frederick was now in a bind because her FMLA leave would soon run out. If she returned to work before her leave ran out, she would be unable to breastfeed her son. If she didn’t return to work when her leave ran out, her employer would consider her absences unexcused, with three unexcused absences being grounds for termination.
Understanding her predicament, Frederick contacted her ombudsman. After some negotiating, DHHS agreed to allow Frederick to breastfeed at work, but only in public areas. She was also still prohibited from leaving work to breastfeed her child. Frederick did not agree to these conditions, as she felt it was unreasonable for her to have to breastfeed in front of strangers.
When Frederick did not return to work after the expiration of her FMLA leave, she was summoned to a disciplinary hearing. During this hearing, Frederick explained she would only return to work if she could breastfeed her son in the private lactation room or if she could leave during her break to breastfeed her son at the nearby daycare. DHHS’s attorney refused both requests.
Frederick was fired approximately seven weeks after the expiration of her FMLA leave. Believing she was improperly discriminated against, Frederick filed complaints with the New Hampshire Human Rights Commission and the United States Equal Employment Opportunity Commission (EEOC). After the EEOC issued a right to sue letter, Frederick sued DHHS alleging violations of the Pregnancy Discrimination Act of 1978 (PDA), Fair Labor Standards Act of 1938 (FLSA), FMLA, and other state statutes.
One of the notable components of Frederick’s lawsuit against the DHHS was the belief that DHHS violated the FLSA’s retaliation provision when she contacted her ombudsman and complained about DHHS’s breastfeeding policy. All of Frederick’s claims, including retaliation, were dismissed by the court. The rest of this blog post will analyze why her retaliation claim failed.
Retaliation Under the FLSA
The FLSA is a federal law that mostly concerns work hours and wages. However, it contains a provision that makes it illegal for an employer to retaliate against an employee for complaining about any rights provided by the FLSA.
Retaliation occurs when employer implements an adverse action against an employee for participating in a protected activity. An adverse action is something negative imposed on an employee and can include acts such as termination, demotion, or a pay cut.
A protected activity is an action that is legally protected, such as Frederick complaining that DHHS’s breastfeeding policy violated the FLSA.
For more information concerning retaliation under the FLSA, please visit the United States Department of Labor’s webpage “Fact Sheet # 77A: Prohibiting Retaliation Under the Fair Labor Standards Act (FLSA).”
Frederick’s Retaliation Claim
As indicated above, Frederick did not succeed on her FLSA retaliation claim. She was able to at least preliminarily show that she suffered an adverse action and engaged in a protected activity. However, this was not enough to prove retaliation.
To succeed on a retaliation claim under the FLSA, Frederick needed to also establish a causal connection between the adverse action and the protected activity. In other words, she needed to prove that she suffered an adverse action because of her protected activity.
Frederick provided no proof that she was fired because she complained about her employer’s breastfeeding policy. Also, Frederick’s argument that her firing and complaints about the breastfeeding policy were close in time was not enough as a matter of law to show a causal connection between the two.
Significance of Frederick v. State of New Hampshire
At first glance, it seems Frederick’s case might be a setback for working breastfeeding women. There’s a legal cliché that lawyers sometimes repeat: “If the facts are against you, argue the law. If the law is against you, argue the facts.” Although unfortunate for Frederick, her unsuccessful case is more of an example of this cliché rather than a shift in breastfeeding rights.
Summing It Up
- To successfully sue for retaliation under the FLSA, an employee must provide evidence that there is a causal connection between the protected activity and the adverse action.
- Explaining how the adverse action occurred soon after the protected activity is not enough (by itself) to establish this “but for” connection.
- Frederick’s lawsuit does not represent a trend in the law diminishing the rights of women to breastfeed at work.
