Breast Feeding and Pumping at Work is a Protected Activity.
You have many rights at work and in the state of California that includes the right to time for pumping if you are breastfeeding a child. Just because the law protects it doesn’t mean all employers are up to par on supporting mothers, women have even been fired for such requests.
Wrongful terminations usually are determined by one of two factors. Was discrimination or retaliation present in the termination? California labor law describes discrimination as having protected classes of age, race, gender, sexual orientation or identification, religion, familial status, and disability/ medical condition. Retaliation means that the person was terminated in retaliation of reporting some type of illegal activity within the company or some type of broken rule, code or policy.
In this particular case Donnicia Venters was fired for making the statement that she intended to use a breast pump upon returning to work. The EEOC stated that the company likely violated:
(a) Title VII’s prohibition against sex discrimination, and
(b) violation of the Pregnancy Discrimination Act, which bars employment discrimination based on “pregnancy, childbirth, or related medical conditions.”
These assertions were argued that breastfeeding is a gender specific trait and as such might be a violation for a protected class; but also is in violation of the Pregnancy Discrimination Act (PDA).
PDA was drawn up by congress in 1976, in response to General Electric Company v. Gilbert. This case involved health insurance benefits that excluded coverage for pregnancy. The idea was to prevent pregnant woman from being treated differently simply because they were pregnant. In essence, PDA combines both gender discrimination and medical discrimination to protect pregnant woman from being treated unfairly.
Venters must argue that breastfeeding is protected as gender discrimination because it is a gender specific trait and it is protected under medical discrimination, arguing that it is a medical condition.
The Fair Labor Standards Act provides new legal protection that Venters did not have when she gave birth to her baby in 2008. Effective March 23, 2010, the Patient Protection and Affordable Care Act, also known as the Healthcare Reform Act (HRA), amended the FLSA to require most employers to provide a nursing mother break time to pump. Covered employers must provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has need to express milk. See 29 U.S.C. § 207(r). Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk. Id. The FLSA amendment does not require employers to pay employees for such break time. Id. However, presently before the Supreme Court is a constitutional challenge to certain provisions of the HRA (not the FLSA amendments). It is possible, albeit unlikely, that the Supreme Court’s decision will invalidate the entire HRA.
Labor law is complex; if you have any questions regarding your employment it is recommended that you contact a California labor law attorney who can help you understand your rights and in many cases will review your situation without charge.