Your employee returns from maternity leave and informs you that as a nursing mother she needs certain accommodations. What do you do? Hopefully you make every effort to find her an appropriate, sanitary, relatively private place to express her milk. Hopefully you allow her reasonable breaks. It’s the right thing to do. It’s also the law. What if you don’t, though? You could end up in the same position as the Fire Department in Tucson, Arizona. They paid $3.8 million for their missteps.
Here’s what went down: A paramedic returning from maternity leave asked for accommodations as a nursing mother so she could express her milk. The fire department’s scheduler told her he didn’t believe she needed special accommodations. That was likely the first blunder, as federal laws say otherwise. (More on that very shortly). The H.R. Manager recommended that she use fire chiefs’ and captains’ bedrooms as needed. The paramedic pointed out that such an option would require waking her supervisors every 2-3 hours. Doesn’t sound reasonable, does it? The HR Manager then allegedly said to her “Your pumping schedule seems excessive to me” . The paramedic told the HR Manager that the schedule was normal for a newborn, to which the HR Manager allegedly replied, “Well, it seems you’re not fit for duty”. Several of the City’s stations did not have or provide appropriate space for pumping. The paramedic ended up using vacation and sick time to avoid working at those stations.
There’s more. Isn’t there always? After the paramedic filed a complaint, the fire department denied her request to be assigned to a particular station that had accommodations for nursing mothers. When she asked why, she was allegedly told “that’s what happens when you file a complaint with EEO”. Subsequently, the fire department did assign to that station another lactating mother who had not complained. Yep, the fire department retaliated.
Of course a lawsuit ensued. How could that be a surprise? From a legal standpoint what was wrong with the fire department’s actions? First, the Fair Labor Standards Act requires employers to provide a relatively private space that is not a bathroom to nursing mothers to express their milk. It need not be a permanent room, but it must be a place where others cannot easily see in or walk in and out while the mother is expressing her milk. The FLSA also requires the employer to provide a nursing mother reasonable breaks for pumping. A jury found that this clearly did not happen.
In addition to FLSA violations, the fire department found itself facing sex discrimination claims. Discrimination on the basis of childbirth, pregnancy or related conditions is unlawsful sex discrimination within the meaning of Title VII of the Civil Rights Act of 1964. Then there’s the retaliation issue. Both the FLSA and Title VII specifically prohibit retaliation against any employee asserting rights or making complaints pursuant to either. The jury agreed with the paramedic and awarded her $3.8 million in damages.
So here are a few takeaways for employers:
- If an employee asks for accommodations as a nursing mom, make every effort to provide her an appropriate, sanitary, relatively private space that is not a bathroom for expressing milk.
- Allow nursing moms reasonable break times for pumping.
- Don’t make derogatory comments to or about nursing moms requesting accommodations and don’t allow anyone else to make them either;
- Update your policies to ensure that they include reasonable accommodations for nursing moms;
- Have a designated point person who is NOT the employee’s direct supervisor handle such requests (just as you should have for other reasonable accommodation requests);
- Don’t retaliate against anyone who requests such accommodations or who complains about failure to make such accommodations.
That should be enough for now. See you next week!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ