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Featured Guest Blogger September 28th, 2009

Adria B. Martinelli has practiced employment law in Delaware since joining Young Conaway Stargatt & Taylor in 2001 as a senior associate in the Employment Law Section. She is also a regular speaker on employment-related topics, and trains individual employers in various areas of employment law, including sexual harassment, performance evaluations and documentation, and exceptions to at-will employment. Adria serves as an editor of the Delaware Employment Law Letter and writes for the Delaware Employment Law Blog. Please note that the views of our guest bloggers do not necessarily reflect the views of the Sloan Work and Family Research Network.

On August 27, the Ohio Supreme Court Court issued its opinion in Allen v. Totes/Isotoner Corp.  The plaintiff claimed she was terminated for taking breaks to pump breast milk, which was a violation of Ohio’s Pregnancy Discrimination Act.  In its two-page opinion, the majority said that the employee was fired for not following company policy on breaks, period.  End of story, plain and simple.

Apparently this is not so, judging on the uproar this decision has created in the blogosphere:

Totes/Istoner Boycott Urged:  Breast-Feeding Moms Take the Gloves Off
Oh, Those Lactation Regulations
Ohio to Nursing Mothers:  Get Those Breasts on a Schedule
Lactate on Your Own Time, Lady
Lactation, Breastfeeding, Discrimination and Accommodation
When Breast Milk Production Doesn’t Fit Like a Glove With an Employer’s Schedule

It appears many out there misapprehend the nature of the protections provided under the Pregnancy Discrimination Act.  While Isoner’s actions certainly seem unduly harsh and unreasonable, they were not illegal.  On the federal level, the PDA was an amendment to Title VII, enacted in 1978, which clarified that discrimination based on “sex” included discrimination based on “pregnancy or related conditions.”  Most states, including Ohio, have amended their state law similarly, and follow federal law on the interpretation of their statute.

The PDA provides that you cannot treat employees differently because they are pregnant or have pregnancy-related conditions.  It doesn’t say you have to treat them better. So, in general, to state a discrimination claim the pregnant employee has to (1) show evidence of discrimination based on pregnancy, typically in the form of remarks pertaining to pregnancy or related condition; or (2) show that she was not afforded the same benefits or protections as non-pregnant employees. In the Isotoner case, the company had a policy on the breaks, and the plaintiff did not follow it. There was no evidence to suggest that Isotoner was unhappy with the fact she was breastfeeding–they just didn’t like the fact that she was away from her workstation without proper authorization. There was no evidence they would have treated a non-lactating employee differently if he or she took breaks of similar duration and without permission.

The Ohio Supreme Court’s decision was perfectly consistent with current law. The only shocking part about the case was the lower (appellate) court’s baffling conclusion that lactation was not protected under Ohio’s pregnancy discrimination laws, apparently based on the principle that a mother could discontinue breastfeeding if she chose to do so. Only the concurring decision by O’Connor on the Ohio Supreme Court bothered to address this absurdity. Of course lactation is a “pregnancy-related” condition! We don’t need the medical definition of “colostrum” to figure that out (but thanks, anyway, Justice O’Connor). The suggestion that because a woman could stop lactation if she wanted to is irrelevant; it does not negate the fact that if she chooses not to impede nature on this matter, it’s pregnancy-related. The public policy implications of such a ruling are insane–essentially punishing a mother for making the medically-recommended decision to continue breastfeeding her baby after she returns to work.

Much to the chagrin of women’s rights advocates everywhere, the PDA is limited in its protections. At the time it was passed, many companies were terminating female employees outright upon announcement of their pregnancy. It was thought then (and by some now) that it was enough to say “we’re going to treat you the same as any other employee.” Now, 30 years after the passage of the PDA, we’ve had plenty of time to observe that maybe we need more. Certain conditions related to pregnancy (nursing among them) are unique and require unique accommodations if we are to enable women (particularly new mothers) to succeed in the workplace.

Nursing moms may need up to 20 minutes every two to three hours to nurse, with less frequent breaks as the baby gets older. Typically, these requirements are not going to fit squarely into the employer’s existing break policy. There is unanimity among the medical profession regarding the health benefits of breast milk. Laws are in place in nearly every state protecting a woman’s right to breastfeed in public.  There is a gaping hole regarding a woman’s right to breastfeed (or pump) at work.  The PDA should be amended to (1) clarify that lactation is a “pregnancy-related condition” protected by the statute; and (2) require employers to “accommodate” pumping breaks of reasonable length and frequency.

• Breastfeeding , Policy , Workplace