Top Pregnancy Discrimination Attorney Answers: Can my manager fire or demote me for using a breast pump at work? Does my employer have to accommodate my need to pump breast milk after I have a baby? What can I do if my employer fired me for pumping?
It is often said there is nothing stronger than a mother’s love, and that a mother will do anything for her child. Well, in the case of nurse Susan Van Son, anything included smuggling a breast pump piece by piece into the prison where she worked. Why would a dedicated employee go to such extremes? Simple, because the only alternative her employer provided her was to pump in the public bathroom outside of the prison’s security checkpoint. Van Son decided to take radical action to avoid pumping in a smelly, cold, public bathroom. Unfortunately, too many new mothers face situations similar to that of Van Son. As our employment law attorneys have blogged about before, his is a form of gender discrimination, and it is wrong! (See Can My Employer Make Me Pump Milk In My Car Or A Bathroom? Best Lawyer Help; As A New Mom, What Are My Nursing Rights At Work?; Gender Discrimination: Employers Cannot Discriminate Based On Conditions That Are Strictly Limited To Women Employees).
One such example is the case of Autumn Lampkin. Lumpkin had given birth to her son a few months before she was hired as an assistant manager at Kentucky Fried Chicken. When she was hired KFC told Lampkins that her need to use a breast pump would not be an issue. However, this proved to not be the case. At the start of her employment, KFC allowed Lampkins only one pump session per ten-hour training shift. This schedule was clearly not in line with the doctor recommended pump every two hours. To make matters worse, Lampkins was originally forced to pump in a public bathroom stall. KFC later allowed Lampkins to use a manager’s office to pump. The shift in location did little to ease Lampkins trouble. The Manager’s office was under constant video surveillance, and employees frequently entered the office while Lampkins was pumping. Perhaps the greatest hardship Lampkins faced was the harassment and insubordination from her co-workers who complained about Lampkins receiving what they considered to be special treatment. The situation became so bad that Lampkins supply of breast milk drastically decreased and she eventually stopped producing milk all together.
In the past few years, there has been a movement across America that has seen lawmakers implementing policies designed to help working mothers who need to pump or breastfeed while at work. Most of these changes have occurred at the state level where new employment laws and building codes are being introduced in an effort to help new mothers get out of the bathroom, and into a safe place to pump.
Unfortunately on the state employment law level, unlike states such as California, and New York, Ohio has not yet enacted legal protections specifically for nursing mothers. However, an Ohio statute prohibits discrimination against employees on the basis of sex, pregnancy, childbirth, or related medical conditions. Ohio Rev. Code §§ 4112.01(B), 4112.02(A). This statute also states that women affected by pregnancy, childbirth, or related medical conditions be treated the same for all employment purposes as other persons not affected by pregnancy, childbirth, or related medical conditions but similar in their ability or inability to work. This statute applies to all employers with four or more employees.
The federal Patient Protection and Affordable Care Act, which was signed into law in March 2010 and amended the Fair Labor Standards Act (“FLSA“), requires any employer of 50 or more to provide an unpaid break as well as a private area to express or pump the milk. While the employer can designate a temporary space, that space cannot be a bathroom. Unfortunately, this law provided no private right of action (ability to sue) for the failure to provide a pumping accommodation (although it can be reported to the Department of Labor (“DOL“)).
However, these federal laws fall well short of providing real protection to nursing mothers. For starters the Break Time for Nursing Mothers law may only apply to employers with 50 or more employees. Secondly, the Break Time for Nursing Mothers law is a part of the FLSA, and under the FLSA employees do not have a lot of options directly against the employer if the employer fails to follow the law. The Break Time for Nursing Mothers law clearly does not allow for an employee to sue their employer for failing to accommodate them. Therefore, the new mom is only limited to filing a complaint directly with the DOL. Is that really all a new mom can hope for?
Not so fast! New moms have a few more options! As the dedicated and award winning employment law attorneys at Spitz, The Employee’s Law Firm know, even when the underlying claim is not actionable, it is still illegal for an employer to retaliate against an employee for making certain complaints. Now that the Break Time for Nursing Mothers law falls under the FLSA, an employer who retaliates against a new mom for complaining about the employers failure to accommodate her need to breast pump will be found liable under the FLSA’s anti-retaliation provision, 29 U.S.C § 215(a)(3). This provision states 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.” Thus, an employee who faces retaliation for a request to pump or complaints about the accommodations or lack thereof can sue her employer. Thus, if your boss fired you for asking to pump or complaining above being told to pump in a bathroom or a remove with cameras, you would likely have a case for wrongful termination. Essentially, a new mom cannot be fired for complaining to her employer that they have failed to adequately accommodate her need to pump.
There is yet another option available to new moms. Remember Autumn Lampkins, the new mother whose life was made even more difficult by KFC’s refusal to accommodate her? Well she made the right decision and sued KFC for gender discrimination and creating and allowing a hostile work environment. So, she sued and took her case all the way to a jury, which last week awarded her $25,000 in compensation and $1.5 million in punitive damages to punish the employer.
Lampkins brought her claim under Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination and harassment based on race/color, religion, national origin, age, disability discrimination. As our experienced employment lawyers have blogged before in order to establish a hostile work environment claim requires the employee to demonstrate that they were subjected to a severe and pervasive environment of harassment based on their membership in a protected class; that they were personally offended by it; that others would be too; and that the harassment was so severe that it affected the ability of the employee to do their job.
Lampkins was able to convince a judge and jury that because breastfeeding is exclusive to the female gender that the harassment, she faced at KFC was based on her sex. The jury found that being forced to pump in a public bathroom, and then in front of cameras in a manager’s office where male and female employees frequently walked in on her, as well as the frequent comments by her co-workers, was severe and pervasive enough to impact Lampkins work environment. Similarly, the judge agreed that forcing Lampkins, and any other woman would be offended by having to pump in a smelly public bathroom, or in a less than secure managers office, and frequent disparaging comments from co-workers could amount to a hostile work environment based on gender. Finally, the judge had previously held that a reasonable jury could find that the comments, and insubordination Lampkins faced from her co-workers made it nearly impossible for Lumpkin to perform her job duties.
On a more positive note, not all employers are as unwilling to accommodate new mothers as KFC. Look at the situation of one anonymous new mom who told her boss that she would need to breastfeed when she returned to work. Her boss replied:
“Yes, whatever you need to do be successful here, I am supportive. I think it would be helpful to block your calendar for the times that you will be unavailable as I (or others) may inadvertently schedule something over these times. And nothing here is so crucial that you should not take care of yourself so please let me know if there’s anything else that we need to discuss.”
To read more about this wonder accommodation story click here.
Unfortunately, not all employers are as accommodating as the boss above. What you should take away today is that discrimination against breastfeeding mothers is discrimination based on gender. If you are facing discrimination or harassment simply because you are breast feeding, or pregnant protect your legal rights — call the right attorney. Similarly, if you have complained to your employer about the inadequate accommodations for breast pumping and were demoted, wrongfully terminated, or wrongfully disciplined you may have a claim for retaliation under the FLSA, protect your legal rights — call the right attorney. Under federal and Ohio employment laws, employers cannot harass, fire, wrongfully terminated, discriminated against, demoted, or wrongfully discipline a female employee just because she got pregnant, or choose to breastfeed.
If you feel that you are being discriminated based on your gender or sex, then call the right attorney. It is never appropriate to discriminate against female employees. Discrimination against women includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied a promotion, and denied wages or not receiving equal pay. When you call the right attorney to schedule a free and confidential consultation, you will meet with an attorney from Spitz, The Employee’s Law Firm to discuss wrongful discrimination claims and help you determine the best way to pursue your gender/sex discrimination claims. Call our office at 866-797-6040.
The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. Your best option is to contact an Ohio attorney to obtain advice with respect to gender discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.