The purpose of this paper was to review state and federal court cases in order to assess the current status of judicial opinion regarding breast-feeding accommodations that may be required in the workplace. It was surprising to find that laws such as the Pregnancy Discrimination Act, the Americans with Disabilities Act and Civil Rights Act were not interpreted by the various courts to mandate that employers provide special accommodations for mothers in the workforce that were breast-feeding. As a result, various states have designed legislation fill the void left by the courts. Some of these laws are also discussed in this paper.
"...[F]ew would deny that the problems facing women who wish to bear children while pursuing challenging careers at the same time remain substantial"1
The purpose of this paper is to review state and federal court cases to determine the current status of the law regarding breast-feeding accommodations that may be required in the workplace. For example, is breast-feeding considered a disability under the Americans with Disabilities Act? If an employer refuses to grant, or extend, leaves of absence, is it guilty of disparate treatment and/or disparate impact? Is such a leave protected by the Family Medical Leave Act? If an employer fails to provide a private place, or extend break time, for a lactating employee using a breast pump, is it a violation of the Pregnancy Discrimination Act? These and other issues are considered in this paper.
Currently, there are five states that have statutes expressly dealing with breast-feeding practices in the workplace. These laws are also reviewed.
Breast-Feeding Issues in the Courts
A review of state and federal cases reveals that there is little in the law to support an employee's right to either nurse their babies during working hours or to set aside time for the expression of milk. Nevertheless, there was an absence of total uniformity in the various courts' reasoning.
Dike v. School Board of Orange County, Florida2
Janice Dike, a schoolteacher, brought an action in federal court challenging the school's refusal to permit her to breast-feed her child during her duty-free lunch period, in privacy, without disruption of school activities. Her husband or babysitter would bring the child to school. However, the principal directed Dike to stop this practice due to a rule prohibiting teachers from bringing their children to work with them for any reason.
Thereafter, Dike's child developed an allergic reaction to formula milk and she extracted milk with a breast pump. The infant refused to take bottles with her mother's milk and Dike was forced to take an unpaid leave.
Dike then sued the school board, claiming that breast-feeding on the job was necessary to her child's health and she also contended that she had a Constitutional right to breast-feed her child. A district court dismissed her suit, but the Fifth Circuit reversed and voided the lower court's requirement that she pay the School's attorney's fees. According to the Fifth Circuit, the 14th Amendment to the Constitution protects individuals from undue state interference with a citizen's freedom of personal choice in some areas of marriage and family life, including procreation, contraception, abortion, etc. It observed that:
"Nourishment is necessary to maintain the child's life, and the parent may choose to believe that breast-feeding will enhance the child's psychological as well as physical health. In light of the spectrum of interests that the Supreme Court has held specially protected we conclude that the Constitution protects from excessive state interference a woman's decision respecting breast-feeding her child."3
Nevertheless, the court noted that the Constitution does not prohibit all restrictions of protected liberties. The school board might establish, by appropriate pleadings and proof, that its regulations prohibiting teachers from leaving the campus or bring children to school, as applied to teachers who wish to breast-feed their children during non-duty time, may significantly further important state interests.4
Barrash v. Bowen5
Rona Barrash was a young married woman who worked for the Social Security Administration (SSA). After the birth of her first child in 1982, she was granted a six-month maternity leave, beginning with the birth of the baby so that she might provide breast-feeding. Meanwhile, the SSA was ordered to restrict the duration of administrative leaves. After the birth of her second baby in 1984, Barrash requested another six-month leave, but was granted one only for six weeks. She filed a grievance and subsequently, an agreement was reached between the union and the employer to extend her leave until September 10, 1984. Barrash returned to work on September 10th but stated that she developed an anxiety reaction to her work. The plaintiff was warned that if she did not report to work by September 24th, she would be considered absent without leave. On September 25th, when she was not at work, she was suspended, and subsequently discharged on November 4, 1984.