On August 27, the Ohio Supreme Court Court issued its opinion in Allen v. Totes/Isotoner Corp. 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 not so, judging on the uproar this decision has created in the blogosphere:
- “Oh, Those Lactation Regulations”
- “Ohio to Nursing Mothers: Get Those Breasts on a Schedule”
- “Lactate on Your Own Time Lady” via Salon
- “Lactation, Breastfeeding, Discrimination and Accommodation” via Law Profs Blawg
- When Breast Milk Production Doesn’t Fit Like a Glove With an Employer’s Schedule via Feminist Law Prof
It appears many out there misapprehend the nature of the protections provided under the Pregnancy Discrimination Act. 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, 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 the Isotoner was unhappy with the fact she was breastfeeding – they just didn’t like the fact 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.
Do I think it was an unjust and unreasonable decision by Isotoner to fire her? ABSOLUTELY (assuming that was her only infraction). Was it illegal under any existing law protecting pregnant and nursing women? NO.
The lower (appellate) court in the case did reach the baffling conclusion that lactation was not protected under Ohio’s pregnancy discrimination laws, apparently based on the principle that a mother has the choice whether to continue lactating or not. Only Justice Maureen O’Connor, in her concurring decision, 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 it 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. And I won’t even go down the path of the public policy implications of such a statement, which essentially punish 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), 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-three hours to nurse (less depending on the infant’s age). Typically, this is not going to fit “like a glove” into the Company’s existing break policy. (And we all know smokers and water-cooler gabbers who take at least this much time in breaks).
There is unanimity among the medical profession regarding the health benefits of breastmilk. 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 clarify that (1) lactation is a “pregnancy-related condition” protected by the statute; and (2) requiring the company to “accommodate” pumping breaks of reasonable length and frequency.
For other, related posts, see: