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Top Lactation Rights Lawyer Reply: As A New Mom, What Are My Nursing Rights At Work?

| Jun 5, 2014 | Employment Discrimination, gender-discrimination, pregnancy maternity rights, Wage: Overtime, Wrongful Termination |

Ohio Pregnancy Discrimination Attorney Best Answers: What does my employer have to do for lactating mothers? If my employer refuses to accommodate my need to pump, what should I do? Can I just quit and sue if my boss will not let me pump? Can a job fire you for taking time to lactate?

Employment, Lawyer, attorney, Ohio, Cleveland, employer, employee, gender, discrimination, woman, women, female, employees, fired, wrongfully terminated, discriminate, pregnancy, pregnant, Title VII, best, top, Brian Spitz, What should I do, I’m being discriminated against, How do I, employment laws, you, yourOur employment law attorneys have blogged before about it being illegal to fire women when they get pregnant. What about after these female employees give birth and return to work with a need to breast feed?

As many people have heard, the Affordable Health Care Act (“AHCA”) created additional rights for nursing mothers at work. The AHCA did this by amending the Fair Labor Standards Act (“FLSA”) for to require employers to provide break time and a private place for employees to express breast milk for nursing children, unless doing so would impose an undue hardship on the employer. However, despite this new employee right, there actually is not much an employee can directly do if the employer fails to comply with the law. The FLSA clearly does not allow for an employee to sue for such a violation. The new mom is limited to filing a complaint directly with the Department of Labor. So, is that it? What’s the point of a new right if it doesn’t have any teeth?

Ohio, Cleveland, best, top, Brian Spitz, Employment, Lawyer, attorney, employer, employee, gender, discrimination, woman, women, female, employees, fired, wrongfully terminated, discriminate, pregnancy, pregnant, Title VII, What should I do, I’m being discriminated against, How do I, employment laws, you, yourNot so fast. As we have blogged before, even when the underlying claim is unactionable, it is nonetheless illegal for an employer to retaliate against an employee for making certain complaints. And, now that lactation rights fall under the FLSA, an employer who retaliates against an employee for complaining about the employers failure to comply will become liable under the FLSA’s anti-retaliation provision, 29 U.S.C § 215(a)(3), which provides that “it shall be unlawful for any person …to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

Moreover, if it can be shown that an employer’s persistent or willful failure to comply was deliberately designed to make the workplace so intolerable that it can be argued that it was designed to force the employee to quit, that employee may pursue a claim for constructive discharge.

However, you cannot turn a refusal to accommodate into retaliation or a constructive discharge by just quitting at the first sign of trouble. Instead, you have try to work with your employer to resolve the issue. Basically, the more you complain, and the more nothing is done, the stronger the claim. This is especially so when the employer responds by retaliating against you. This is one of the reasons we always encourage our clients who are still employed to submit a written complaint first, and to wait and see how the employer responds before quitting.

Take, for example, the case of Ames v. Nationwide Insurance. There, the plaintiff, Ames, encountered difficulties in receiving accommodations for her need to lactate when she returned to work after having her second child. While she was on maternity leave, Ames spoke with a Nationwide disability case manager about her need to lactate, and the case manager told her that Nationwide had lactation rooms available. On her first day back, Ames approached one of her managers, Neel, about using a lactation room. Neel responded by telling Ames it was not her responsibility to provide Ames with a place to lactate. Ames then approached the security desk about the location of the lactation rooms and was told to see Nationwide’s on-site nurse.

The on-site nurse told Ames the lactation room could only be accessed with a badge that Nationwide would issue her upon completing certain paperwork. The nurse then immediately sent Ames the necessary paperwork, and also sent security a request to expedite Ames paperwork once it was received so she would receive immediate access. In the meanwhile, the nurse offered to allow Ames to use a wellness room, but warned that the room might contain germs. Because the wellness room was occupied, Ames was told she would have to return in 15-20 minutes.

While she was waiting, Ames went to her direct supervisor, Brinks, to discuss the status of her work since she had gone on maternity leave. Brinks told Ames that her work had not been done, and that Nationwide expected her to get caught up in two weeks or she could face discipline. After meeting with Brinks, Ames again went to Neel to see if Neel could help her find a place to lactate. When Neels told Ames she could not help, Ames became visibly upset and began crying. At that point, Neel slid over a piece of paper to Ames, and instructed her to resign, stating “you know, I think it’s best that you go home to be with your babies.” Ames then wrote out her resignation and left. Ames later sued, arguing that Nationwide had constructively discharged her

Sounds like a strong case, right? Unfortunately, the Courts did not think so. At the trial court level, Nationwide filed a motion for summary judgment, arguing that Ames had failed to show that she was discriminated against or constructively discharged. The trial court granted Nationwide’s motion, and Ames appealed.

The court of appeals affirmed the lower court’s decision, finding that Nationwide had worked with Ames to accommodate her need to lactate, such that the evidence tended to prove that Nationwide wanted to maintain an employment relationship with her, rather than end it. Further, the court found that Ames was only denied access to the lactation room because she had not completed her paperwork.

Finally, the court addressed Neel’s remark that Ames should “go home and be with her babies”:

While we are doubtful whether Neel’s comment that it was best that Ames go home with her babies might support a finding of intent to force Ames to resign, assuming that it would, Ames’s constructive discharge claim still fails because she did not give Nationwide a reasonable opportunity to address and ameliorate the conditions that she claims constituted a constructive discharge. The only way in which Ames attempted to alert Nationwide to the problem was by asking Neel twice about obtaining a lactation room and by approaching Hallberg about the same problem, all on the morning that Ames resigned. Moreover, when Ames approached [the on site nurse] about the problem, [the nurse] suggested to Ames a temporary solution. Although this solution may not have been immediately available or ideal, Ames had an obligation not to jump to the conclusion that the attempt would not work and that her only reasonable option was to resign.

While this finding might seem harsh, it serves as firm reminder of why it is important to call the right attorney the moment you have trouble at work. If Ames had formally complained to Nationwide’s HR department, given them time to work it out, and then quit when (and if) Nationwide failed to respond, or worse, if Nationwide retaliated against her after she complained, the outcome likely would have been different.

If we had handled this case, we would have argued that Neel terminated Ames, and only argued constructive discharge in the alternative given these facts. In fact, Ames attorney tried to raise this argument on appeal, but the court refused to consider it, because the issue had not been raised in the lower court, and it was therefore waived. This serves as a reminder of why it is so critical to make sure you call the right attorney when you are trying to find someone to help you with you pregnancy discrimination case.

If you are facing discrimination or harassment simply because you are pregnant, protect your legal rights — call the right attorney. Under federal and Ohio employment laws, employers cannot harass, fire, wrongfully terminate, discriminate against, demote, or wrongfully discipline a female employee just because she got pregnant. When you call the right attorney to schedule a free and confidential initial consultation at 866-797-6040, you will meet with an attorney from The Spitz Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims. Our pregnancy discrimination lawyers know your rights and will fight to protect them.

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