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Breastfeeding mother jumps over first hurdle on FLSA retaliation claim

February 8th, 2014  |  Sheryl Allenson

Although new mothers seeking to pump breast milk at work have had protection under federal law for several years, employers generally were not held to the letter of the law. That is, not until recently. In May 2013, an appeals court overturned a ruling against an employee who claimed she was terminated for asking to pump milk at work. The appeals court rejected the lower court’s decision that ‘[l]actation is not pregnancy, childbirth or a related medical condition.” An adverse employment action motivated because an employee was lactating or expressing breast milk is clearly based on factors “that male employees need not — indeed, could not — suffer,” wrote the appeals court, finding the employee could have stated an actionable sex discrimination claim.

Recently, the ACLU has entered the arena, representing a Pennsylvania glass maker in her civil complaint. According to the complaint and an EEOC charge, the employee continuously asked her employer for a suitable place to express milk, but instead, the employer provided her only with space that was either unsanitary or not sufficiently private. Just days ago, the employee learned that her complaint could advance after it survived the employer’s motion to dismiss the action.

Single mother knows the law. In this case, the employee knew the law. She knew that the 2010 Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to add a provision known as the “Reasonable Break Time for Nursing Mothers.” That provision requires employers to provide non-exempt employees a reasonable break to pump milk for a nursing child for one year after birth and a place, other than a bathroom, that is shielded from view and is free from intrusion from coworkers and others.

Although the employee tried to educate her employer about the law, her efforts apparently failed. First she was directed to a bathroom, then, when she pointed out that that did not comport with the law, she was provided other unsanitary or insufficiently private spaces. Finally, she agreed to use a filthy locker room, because “at least it had a lock on the door – and they said they’d clean it up,” Although her employer had promised to clean up the space, it had dirt and dead bugs on the floor, and there was no air conditioning — problematic because temperatures in the factory could exceed 100 degrees. The company did not take any action to improve the space until after she took legal action.

Harassment starts. Meanwhile, the employee’s coworkers harassed her while she was pumping milk. Among other things, male coworkers pounded on the door and yelled, and one brought her a bucket, comparing her to a cow being milked. On two occasions, coworkers greased the handle of the door where she would pump milk and placed metal shards there. According to the employee, a supervisor told her that the coworkers’ conduct did not rise to the level of harassment because individuals, and not the company, engaged in the conduct.  No action was taken against any of the perpetrators.

Instead of accommodating the employee’s request for a suitable place to pump breast milk, the employer turned to retaliation, she claimed. Although when she returned to work after her pregnancy she initially worked a day shift, after she complained, the employee was placed on a rotating shift, where she was required to work an overnight shift every third week. Pleading that the shift changes were medically detrimental to her ability to pump milk, the employee provided medical notes to her employer to support her request for a reversal of its decision—however, the employer remained steadfast.

Negative impact on mother and child. According to the employee, this shift change caused a reduction in her ability to produce breast milk. Since she was reassigned to the rotating shift, her milk supply decreased by 50 percent. Although she pumped as frequently as before, she produced far less milk each shift. This was a direct result, she said, of her inconsistent work hours, interrupted sleep schedule, stress, and the discomfort she experienced while trying to express milk in the unsuitable and unsanitary facilities provided by the employer.

She also claimed that once her shift was changed, she was assigned to tasks typically given only to employees with very low seniority, far below her own seniority level. She alleged that she was treated differently than other male coworkers who had requested the same accommodations – a day shift – for other medical reasons. She was also denied overtime, which she claimed was in further retaliation for her request for accommodations so she could pump breast milk.

Legal options. Although the employee brought a retaliation claim under the FLSA, this case, coupled with the federal appeals court decision mentioned earlier, further bolsters the growing wave of support for the position that stifling a woman’s right to breastfeed amounts to sex discrimination. Employers beware—employees now have several legal paths to choose to ensure that, if they need to, they can pump breast milk at work.