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.

Although every case differs, attorneys say that opting to settle will shave al least one-third, and frequently more, off the expense of a lawsuit. Attorneys" fees, insurance coverage and the risks of a jury' verdict often supersede the desire to prove who's right.

"If the difference is in the hundreds of thousands of dollars, almost any sophisticated business litigator will say, "If the parties work hard, we should be able to settle this case,'" said Jeffrey Riffer, a partner of Jeffer Mangels Butler & Marmaro LLP. "In the long run, it's economics."

The highest cost in trying a case is attorneys' tees. At $300 to $400 per hour, paying a lawyer can account for hundreds of thousands of dollars of an overall trial cost.

"The attorneys' costs are so huge today it's almost insane," said Joel Grossman, former deputy general counsel of Sony Pictures Entertainment Inc. and now at ADR Services Inc., a private arbitration and mediation firm. "There's no way to intelligently litigate a case where there's less than a couple of hundred thousand dollars involved. It doesn't make any sense."
In divorce cases, emotional issues often cloud decisions about settling. But once the dust has settled, taking the case to trial often proves too costly even for the wealthiest of clients.

Manley Freid, a partner at Freid & Goldsman who has represented both the wage-earner and the spouse seeking support in divorces. said he often convinces the paying spouse to settle because it makes more financial sense.

"I'll say to the husband, it'll take you $10,000 to $30,000 (to settle)," he said. "She gets one bite of the apple. You replenish your war chest of savings, and in six to 12 months. you won't feel it remember it. You want to get this over with, get rid of the emotions, pay the extra bucks and move on."

The fees increase as attorneys get beyond a case's initial filings and begin preparing more time-intensive motions, such as discovery requests or a summary judgment that may cost $20,000 each based on an attorney's hourly rate, said Connie Michaels, an employment partner at Littler Mendelson PC. Once a client has invested $1,500 into a motion, he is more likely to take the case forward, she said.

If at first you don't succeed, try, try again" didn't spring from the Americans with Disabilities Act (ADA), but it may as well have, as the law creates an ongoing obligation to reasonably accommodate qualified individuals with disabilities.

"Many managers are confused about how much they have to do and how far they have to go" when workers request accommodation, noted Sharon Rennert, senior attorney adviser at the Equal Employment Opportunity Commission (EEOC).

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"It is imperative for employers and managers to understand that the reasonable accommodation obligation is an ongoing obligation," she said, citing Humphrey v. Memorial Hospitals Association (239 F.3d 1128 (9th Cir. 2001)). That ruling states that "the duty to accommodate is a continuing duty that is not exhausted by one effort."

The fact that you've provided one accommodation and it works or doesn't work "does not necessarily mean you're done," she observed. "Employers need to stay on top of" accommodation requests, according to Rennert, who said that employers should:
* Research possible accommodations thoroughly, checking first with the employee requesting accommodation, but also checking, for example, with the Department of Labor's Job Accommodation Network ((800) ADA-WORK), the EEOC, organizations representing people who have the same disability as the employee and the vocational rehabilitation agency.

* Continue checking with the employee for input and ideas.

Second Choice Redux

After providing an accommodation, the employer should periodically check on whether the accommodation is working, Rennert recommended.

When an employer discovers that an accommodation is not working, it should reconsider the information it had beforehand and continue to engage in the interactive process with the employee. The employer may have narrowed the accommodation choices down to two and selected the one it preferred, which it has the right to do. But there may be no reason to think the other choice will not work, and the employer may need to give it a try.

Often that choice is one that managers are not thrilled with, such as telework or a modified schedule. "Managers' discomfort or dislike of an accommodation is not a valid reason for turning it down," Rennert cautioned.