Mark Law Firm Blog

Advocates: Complaints of Lactation Discrimination are on the Rise

Posted by Jamison Mark on May 8, 2014 2:52:00 PM
New Jersey Attorneys

It’s hard to believe, but until part the Affordable Care Act went into effect in March 2010, nursing mothers could be fired in most states for taking breaks to pump milk. This part of the ACA amended the federal Fair Labor Standards Act to require companies with 50 employees or more to provide lactating hourly workers a reasonable amount of unpaid break time to express milk for a year after the birth of a child. It also requires employers to provide an appropriate private place for that purpose. Unfortunately, it appears that some employers are ignoring the new law.

You may be wondering if breastfeeding workers are covered by the recent amendment to the New Jersey Law Against Discrimination that added pregnancy as a protected characteristic for workers, as we discussed earlier this week. The good news is that Governor Christie did sign the amendment into law. The not-so-good news is that similar laws have not been found to provide any protection for workers who need to breastfeed or pump.

As amended, the LAD now prohibits pregnancy discrimination, but pregnancy is defined as “pregnancy, childbirth, or related medical conditions, including recovery from childbirth.” Unfortunately, the courts have not read such language as applying to breastfeeding.

The FLSA, including the new rules for breastfeeding at work, is generally enforced by the U.S. Department of Labor Wage and Hour Division, or WHD. That agency has already found 71 violations of the new law, according to a spokesperson for NBC’s Jan. 15 article.

That article detailed the story of a Pennsylvania factory worker. After giving birth to a daughter last year, she claims in a lawsuit, she returned to her job of six years. She planned to continue breastfeeding and, although she knew about the FLSA’s new rules on lactation at work, the knowledge didn’t help. Her supervisors first ordered her to pump in the bathroom, which is specifically prohibited in the law. She protested, but the best the company was able to offer was a dirty, dank locker room without air conditioning. There, she was harassed and tormented by coworkers’ pranks. She complained and was reassigned in retaliation to the night shift, which interrupted her baby’s feeding schedule and hampered her milk production.

In today’s workplace, we simply must stop subjecting employees and coworkers to discrimination and harassment. The tragedy is that laws are required to put a stop to it.

Source: NBC News, "Pumped up: Breastfeeding mothers fight for rights at work," Allison Yarrow, Jan. 14, 2014

Topics: Discrimination & Harassment