Court Holds Nursing Mothers May Seek Lost Wages for Denial of Lactation AccommodationsJuly 1, 2015
After Aida Lico returned from maternity leave to her job at T.D. Bank, she needed to pump breast milk at work to nurse her infant child. According to Ms. Lico’s court-filed complaint, the Bank’s Branch Assistant Manager told her she must take her lactation breaks in the restroom. She objected because she felt the restroom was unsanitary, and was told to use the mailroom, which had no lock on its door. When she noted the lack of privacy of the mailroom, she was told to use the safe-deposit room, which was similarly not a sanitary or private place to take lactation breaks. Further, whenever Ms. Lico asked to take breaks, she was denied permission and instead asked to perform additional assignments. There were times when she was forced to wait as long as five or six hours to express milk. These lengthy delays caused her breasts to become engorged, and on several occasions her breast milk leaked in front of clients and coworkers. Because of her inability to take lactation breaks, Ms. Lico began arriving late to work and leaving early, or traveling home during work in order to nurse her baby. The bank then fired her for “attendance issues.”
Ms. Lico filed a lawsuit in federal court, claiming that in failing to give her lactation breaks and terminating her for making efforts to take those breaks, TD Bank violated the Reasonable Break Time for Nursing Mothers Act amendment to the Fair Labor Standards Act (FLSA). Before the amendment, federal law provided virtually no protection to nursing mothers at work. The Amendment, which went into effect March 2010, requires that employers provide reasonable break time for an employee to pump breast milk for her nursing child whenever she needs to for one year after the child’s birth. The employer also must provide a place, other than a bathroom, which is shielded from view and free from intrusion by others, where an employee can pump breast milk.
While the amendment created important protections for nursing mothers, it presents a practical enforcement problem. Employees who bring an action to enforce the law can only receive the remedy of lost wages; they cannot receive compensation for claims of discomfort or embarrassment caused by the inability to take a nursing break, nor can they use the law to require the employer to provide breaks. Because the law does not require employers to pay their employees during lactation breaks, employees who were not provided lactation breaks, but who have not lost wages because of the inability to take breaks, cannot receive damages. Therefore, when other employees who brought claims did not have lost wages, their cases did not proceed past the initial filing stage of the case. Ms. Lico, however, had 40.35 hours of lost wages specifically because of the Bank’s failure to comply with the law and discriminatory practices in denying her lactation breaks. Therefore, on June 1, 2015, Judge Bianco of the Eastern District of New York allowed the case to proceed past the initial filing stage.
This decision is a victory for ensuring the rights of mothers in the workplace, as it is the first court decision to hold that violations of the Reasonable Break Time for Nursing Mothers Act are privately enforceable in cases where women have lost wages as a result of the employer’s failure to comply with its obligations under the act. Lactation accommodations are critically important to working families, as they enable mothers to return to work and receive full wages without foregoing the important health benefits of breastfeeding. Breastfeeding reduces risks of a variety of illnesses and diseases for both babies and their mothers, including reduced infant illness, reduced risk for obesity and diabetes later in life, and reduced risk for postpartum depression in mothers. Studies also have found a connection between breastfeeding and cognitive development.
The American Academy for Pediatrics recommends that mothers breastfeed exclusively for six months and continue breastfeeding for at least another six months following the introduction of solid foods. This recommendation is unattainable for the majority of America’s working mothers if they do not have the ability to pump breast milk at work, as federal law only guarantees working mothers twelve weeks of unpaid job protected leave, and only about 60% of the workforce is entitled to that leave. Typically, a lactating parent needs to express milk every two to three hours when she is away from her baby. Therefore, workplace lactation accommodations are key to enabling families to receive the benefits of breastfeeding. Lactation accommodations are beneficial to employers as well, as they decrease employee absences and encourage employee productivity by reducing work-family conflicts and stress for new parents.
A number of states have similar requirements as the federal law, but also incorporate broader remedies. For example, under California state law, discrimination because of breastfeeding or lactation is a form of sex-based discrimination prohibited by the Fair Employment and Housing Act (FEHA), which also expressly requires lactation accommodations. If a California employee sues under FEHA, which covers employers of five or more employees, she can sue not only for lost wages, but for emotional distress damages and injunctive relief – requiring the employer to change its discriminatory practices.
For information on your right to lactation accommodation and freedom from lactation discrimination see http://las-elc.org/fact-sheets/breastfeeding-mothers-lactation-accommodation-and-discrimination. For more information on your rights as a mother or pregnant woman in the workplace see https://las-elc.org/work-family-program.