Last week federal judge in Texas ruled that a mother is not protected by law from losing her job if she is fired for asking to pump breast milk at work for her baby. The Judge’s stated reason for this decision can be boiled down to this: breastfeeding is not “pregnancy, childbirth, or a related medical condition” and civil rights law only protects “pregnancy, childbirth, or a related medical condition.”
When I read the case, the mom in me said, “WHAT? How is lactation NOT related to pregnancy and childbirth?!” The lawyer in me was not surprised.
Here’s why: Unless the Civil Rights Act explicitly says otherwise, civil rights/equal protection law says we only protect people from being discriminated against for things they have absolutely no choice about.
For example, before the Pregnancy Discrimination Act of 1978 was passed and made pregnancy discrimination illegal, the law according to the Supreme Court was this (paraphrasing):
Discrimination against a pregnant woman is acceptable and is not gender discrimination in violation of the Civil Rights Act of 1964–because even though only women get pregnant, not all women are pregnant. (Geduldig v. Aiello, 417 US 484 (1974)).
There’s also a cute bit in that case about how it’s entirely fair to not provide women employees with insurance coverage for pregnancy and childbirth because men don’t get coverage for pregnancy and childbirth either. I know. It’s nuts.
It took a new act from Congress, the above-mentioned Pregnancy Discrimination Act of 1978, to impose some biology and common sense on the federal courts and everyone else.
And even though the Pregnancy Discrimination Act overruled the Supreme Court’s Geduldig decision–the logic (or illogic) behind it still stands: because breastfeeding is a choice and not a medically “necessary” element of pregnancy or childbirth, most judges are not going to think it’s protected from discrimination.
Yes, this is ridiculous. The only thing I can think of that will change this is to re-write the law to explicitly protect breastfeeding moms. Which is what Oregon’s Senator Jeff Merkley and House Representative Carolyn B. Maloney are trying to do with The Breastfeeding Promotion Act of 2011 (thanks Hygeia Baby Blog for pointing me there!)
I think we should get that law passed–who’s with me?
Note: I acknowledge that equal protection law is a bit more complicated than what I’ve just described–or at least it pretends to be. 
Related articles
- Working and Pumping Series – Breastfeeding and the Law (Part 1 of 5)
- Working and Pumping Series: Tactics to Get Your Boss to Support Your Pumping (Part 2 of 5)
- Think Breastfeeding Discrimination is Wrong? Take Action! (www.hygeiababy.com/blog)
Good article, and explanation. Fortunately, some states have acted on their own to outlaw breast-feeding discrimination. Clearly, TX has not. (I feel so fortunate to live in one state that has.) If anyone is facing breast-feeding discrimination, check with your own state laws – you may find help there.
Thanks for the comment, Amy. You’re right–some states have stepped up to protect breastfeeding and enforce that protection and it’s worth being informed about that. The http://www.breastfeedinglaw.com site is a great resource on this–but you probably already know about that! It’s sort of nice that the federal government is starting to make an effort to protect pumping moms in a haphazard way–at least the EEOC thinks pumping discrimination is wrong–too bad there isn’t a federal law to back them up yet!
A nice compendium of all the state laws about rights of breastfeeding mothers (some good; some weak) is here: http://www.ncsl.org/issues-research/health/breastfeeding-state-laws.aspx
In Canada, it’s a right that derives from sex – since only women can breastfeed, if a woman breastfeeds in a place she is allowed to be (swimming pool, work, etc) then interfering with her ability to breastfeed (including breastfeeding by proxy: pumping milk) is impeding that woman’s human rights. While it’s a “choice”, it’s medically recommended that woman breastfeed their children for 1-2 years and the government supports this by providing the mother’s leave program under the employment insurance program that provides 52 weeks of leave for mothers in order to facilitate 1 year of breastfeeding.
This makes perfect sense. Leave it to Canada to be rational about gender discrimination! I think that the US Supreme Court’s reasoning about gender discrimination is fundamentally flawed.
Thanks for writing this article Kate. Great explanation and much needed information.
I think we should absolutely get that law passed! How scary is that? The law needs to change and allow all states to support breastfeeding working moms.
Thanks for the great article and information.
I’m so happy I found your blog! I also wanted to add that in 2010 there was an amendment to the Civil Rights Act that required employers to make accommodations for breastfeeding mothers for a year after her child’s birth, including break times for pumping and a private place to pump other than a bathroom. Unfortunately, this Plaintiff was fired two years prior to the amendment. I really hope her attorney files an appeal!
Perhaps whoever thinks it is unfair, because men don’t get pregnant or lactate, thinks these pesky women, should have a sterilization certificate. Then there will be no danger of them needing time off for children’s needs.What if we actually did that in great numbers?
Who would be the future workers and tax payers?