This week in the news, we have seen battles for pregnant and caregiving workers: some won, others ongoing. The highlights include a breastfeeding mom winning breaks to pump during her bar exam and a Catholic school arguing that it was permissible to fire a pregnant, unwed teacher under a ministerial exception.
Soon-to-Be Lawyer Gets Breaks During the Bar Exam to Express Breast Milk
After her request for pumping breaks during the upcoming Kentucky bar exam was denied, Jacquelyn Bryant-Hayes, with the help of the ACLU of Kentucky and the ACLU’s Women’s Rights Project, appealed the decision. This week, she won two additional 20-minute breaks each day of the exam as well as a private non-bathroom space to pump. While this is a win for Bryant-Hayes and her ability to take care of her body and her new baby, these kinds of accommodations are only given on a case-by-case basis, and, as we saw in her case, after a significant fight. A major policy overhaul is needed so that, as Bryant-Hughes explained, “A woman [doesn’t] have to hire a lawyer to be allowed to pump milk.” Read the whole article in The Courier Journal.
A Note on the Law
The Affordable Care Act (ACA) requires employers to provide reasonable break time to express breast milk for employees who gave birth to a baby in the last year. Under the same law, pumping moms are entitled to a private space that is not a bathroom to express milk. The catch: these protections only apply to workplaces that have at least 50 employees and where complying with the law would not be too burdensome. Also, Fair Labor Standards Act exempt employees (think administrative and professional workers) are also not protected by law. The law, of course, does not apply to bar exam takers. But many states (27!) have recognized the importance of these kinds of accommodations for nursing workers and have gone further than the ACA. Learn about your state’s protections from the National Conference of State Legislatures.
Catholic School Says Teacher was a Minister and Could Be Fired for Being Pregnant
Shaela Evenson was fired by her Catholic school employer after the administration received an anonymous letter stating that she was pregnant via in vitro fertilization and was unmarried. Evenson sued the Roman Catholic Diocese of Helena for pregnancy and sex discrimination as well as for breach of contract. This week, however, the Diocese answered Evenson’s charges by claiming that 1) she breached her contract by violating the morality clause in her employment contract by becoming pregnant without being married and 2) in her teaching role, she was a “minister,” and the Diocese is entitled to an exception to Title VII’s sex and pregnancy anti-discrimination protections for workers. See the whole story on ABC News.
A Note on the Law
Generally, religious employers are not exempt from civil rights laws (except for being permitted to discriminate on the basis of religion). However, the Supreme Court has recognized a “ministerial exception” to Title VII’s other protections against discrimination that prevents courts from interfering with religious organizations’ selection (or firing) of ministers, when an employee is specially selected, is trained, holds her or himself out to be a minister, and performs “important religious functions.” Still, whether one is a minister for the purposes of the exception is determined by courts on a case-by-case basis.
Other Pregnancy and Caregiver Discrimination News
While the Alcohol Law Enforcement Branch of the North Carolina Public Safety Department has a policy of permitting special agents to remain in full-duty status and of making accommodations when enforcement duties threaten the health and wellness of the pregnant employee, in this case, a special agent was immediately assigned to light duty in a city that was a three-hour commute from her home. Ultimately, she was forced to take leave, depleting her earned sick and vacation time before giving birth. She has now filed suit against the county and state.
A cosmetologist filed suit for pregnancy discrimination against her nail salon employer after being harassed in the workplace once management discovered she was pregnant. A week after inquiring about pregnancy leave, she was fired.
German law bans pregnant women from working particular kinds of jobs, including working in a hospital. While on leave, women are paid and are still eligible for generous maternity leave, but some women would prefer to work. A surgeon challenged this law at her hospital and earned the right to continue to work during her pregnancy.
If you think you’ve been the victim of discrimination, sexual harassment, or retaliation, contact our office so we can talk about how you’ve been treated, the applicable laws, and your legal options.