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Employee forced to pump breast milk in office with camera and window advances Title VII, but not FLSA, claim

By Kathleen Kapusta, J.D.

Allegations that an employee, following the birth of her son, was forced to pump her breast milk first in a bathroom and then in an office with a working video camera she could not turn off and with a window through which coworkers could and did observe her pumping, along with other allegations including that she was demoted and had her hours cut so she would have more time to pump, were sufficient to support her Title VII hostile work environment claim and claim of constructive discharge, a federal court in Delaware ruled, denying in part her employer’s partial motion for summary judgment. But her FLSA Section 207(r) claim would not go forward, said the court, because she failed to allege she was entitled to any unpaid minimum or overtime wages (Lampkins v. Mitra QSR, LLC, November 28, 2018, Connolly, C.).

The assistant restaurant manager trainee at a KFC franchise alleged that after the birth of her son, she forced to pump her milk in a bathroom. Later, she claimed, she was required to pump in an office with a camera that could not be turned off and a window through which her coworkers could observe her pumping. Not only was one male coworker caught twice watching her pump, another male coworker used his key to enter the office on multiple occasions while she was pumping and her supervisor did paperwork in the office while she pumped.

Demoted so it would be easier? Although she wanted to pump every two hours, the employee was purportedly allowed to pump only once during her 10-hour shift. And when her coworkers complained about her pumping breaks, she was allegedly demoted and transferred to another store so “it would be easier” for her to get the time to express her milk.

At the new store, not much changed, as she was allegedly again forced to pump in an office with a camera, a window, and interruptions from coworkers. She claimed her supervisor cut her hours so she would have more time to pump and because she could not pump a sufficient number of times during her shift, her breast milk would leak through her shirt. Eventually, she alleged, her milk supply dried up and she was unable to breastfeed her son.

Obviously a huge issue. Her coworkers, the employee alleged, not only complained about her pumping, employees that she supervised were upset she would pump rather than “be on the floor.” Further, her supervisor discouraged her from pumping, characterizing it as “obviously . . . a huge issue.” She ultimately quit when she was accused of stealing a customer’s jacket, which she claimed to have accidently taken home.

Hostile work environment. The employer argued that the alleged harassment was not sufficiently severe or pervasive but the court found fact issues sufficient to preclude summary judgment. The employee was forced to pump in an office with a window and operating camera and the feed from the camera was visible to some of the company’s employees in another state. In both locations where she worked, coworkers watched her pump through the windows and entered the office on multiple occasions while she pumped. One such occasion, she alleged that a male cook interrupted her pumping to ask a question and when she told him to ask someone else, her supervisor reprimanded her.

Moreover, it was undisputed that her supervisor discouraged her from pumping. In addition, her coworkers complained that she took pumping breaks and were allegedly insubordinate because they resented her for pumping on the job, making it harder for her to do her job and further discouraging her from taking the time to pump. And because she was not allowed to pump as frequently as she needed, breast milk leaked through her shirt and caused her embarrassment. Considering the totality of these circumstances, a reasonable jury could find she faced severe or pervasive harassment that would detrimentally affect an objectively reasonable person.

Constructive discharge. A reasonable jury, said the court, could also find this harassment was so intolerable that the employee felt compelled to resign. She was demoted, her pay was cut, her hours were reduced, she received unsatisfactory job evaluations, and she believed her supervisor was going to fire her when she quit. Indeed, her supervisor stated in her deposition that she was “probably” about to terminate the employee.

Further, employees she supervised complained about her pumping and were insubordinate and her supervisor implied that the employee’s positive working attitude was eroded by the problems associated with her attempts to pump. All of this, said the court, supported an inference that a hostile work environment frustrated her ability to do her job.

FLSA claim. Her claim under FLSA Section 207(r), which requires covered employers to provide a nursing mother with a reasonable break time and a private place other than a bathroom to express breast milk for one year after the birth of her child, failed however. Although the employer did not dispute that it was required to comply with Section 207(r) or that it violated the provision, it argued that the FLSA does not provide a private cause of action for the injuries she alleged: lost wages, attorneys’ fees, and costs.

Agreeing, the court noted that while FLSA Section 216(b) does create a private right of action to enforce Section 207(r), it limits the available remedies to unpaid minimum wages and overtime compensation. Because the employee did not allege that she was entitled to either, her employer was entitled to summary judgment on this claim.