Speaking of Women's Rights: Pumping at work - a punishable offense?

Tuesday, September 8, 2009

Pumping at work - a punishable offense?

Can an employer lawfully fire a worker for taking breaks to pump breastmilk? The Ohio Supreme Court recently provoked boycotts of the company totes / Isotoner (the maker of gloves, umbrellas, etc.) when it answered “yes.” How exactly did the court reach this decision, and what does it mean for working women?

In a remarkably terse opinion, the majority noted that the employee, LaNisa Allen, admitted that she had taken unauthorized breaks to express milk, and that her supervisor told her she was fired for failing to “follow directions.” The directions being, she could pump once, on her lunch break. In the bathroom, by the way – even though many, including the U.S. Department of Health and Human Services, recommend against that (“Breastfeeding employees should never be expected to express milk in a restroom! Restrooms are unsanitary….).

Finding no evidence that the employer’s reason – Ms. Allen failed to follow directions – was a pretext (legalese for made-up excuse) for discrimination, the court expressly sidestepped the big issue, stating it was not addressing whether discrimination due to lactation is covered by Ohio’s anti-discrimination law.

The result was that the trial court’s decision dismissing Ms. Allen’s claims was upheld. And this was the “reasoning” of the trial court: “Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination.”

Everyone, altogether now: “Huh?”

It’s always fun to watch as judges duke it out in their written opinions. In this case, in addition to that very short, unconvincing majority opinion, there were no less than four additional opinions, for a total of five (and this court has only seven justices).

The other judges all disagreed with the majority - and each other - on various points, but in a nutshell, here is some of the alternative analysis they suggested: (1) The statute prohibits discrimination based on sex. (2) The statute (both Ohio and its federal counterpart, Title VII) defines “because of sex” to include claims based on pregnancy, or pregnancy- or childbirth-related conditions. (3) Lactation (milk production) is a bodily function triggered by hormones released after childbirth.

Further, (4) a work rule or policy that places restrictions on employees based on their sex, or pregnancy, or pregnancy- or childbirth-related condition, is discriminatory. And finally (and at this point, we’re down to just the one dissenting judge), (5) if other employees were allowed to take unscheduled restroom breaks without seeking a supervisor’s permission, then firing Ms. Allen for taking unscheduled restroom breaks to pump milk was unlawful discrimination. Unfortunately for Ms. Allen, the majority did not sign on to that complete line of reasoning. Bottom line: the court's majority decided the company did not break the law by firing Ms. Allen.

The good news – and there is some – is that, as mentioned above, the majority did not actually rule on whether lactation is covered by the anti-discrimination statute; it found that in this case, there wasn't enough evidence for the claim to proceed to trial. Also, this ruling is limited to Ohio; there are still many other state courts, and federal courts, that haven’t addressed this issue.

On the other hand, this case spotlights the fact that many workplaces lack adequate support for breastfeeding workers – despite the proven benefits to both newborn and maternal health. Further, low-income women are more likely to lack both breaks to express milk and appropriate facilities to do so (as noted in this report on improving employment security for pregnant women and new mothers).

Unlike the Ohio Supreme Court’s reasoning, this much is very clear: We need better workplace protections so that women who face family responsibilities are not disadvantaged at work. In case you were wondering how far exactly the U.S. lags in workplace protections for working women, check out this list of other countries – including Burundi, Cambodia, and Zimbabwe – in which women workers have protected breaks for breastfeeding.

There has indeed been some progress in the U.S. on this issue - breastfeeding women in most states cannot be prosecuted for public indecency, and some states explicitly prohibit discrimination based on breastfeeding in public accommodations (such as swimming pools, stores, or restaurants) (read about new Washington legislation here). But the workplace, of course, is really where the rubber hits the road in terms of women's economic advancement and security.

After all, as no less than Bill Gates has said, responding to a question about how Saudi Arabia could become a top competitive economy, to an audience segregated by sex, “Well, if you’re not fully utilizing half the talent in the country, you’re not going to get too close to the top.’”

Hear, hear.