Is Breastfeeding Discrimination Illegal Pregnancy Discrimination?

When female employees become pregnant, federal and state laws protect their jobs under most circumstances. Female employees are generally protected from pregnancy discrimination in the workplace in numerous forms including retaliation and wrongful termination. But what if female workers return to work after maternity leave only to be retaliated against or wrongfully terminated for pumping breast milk at work? Because the workers are no longer pregnant, is this treatment considered illegal pregnancy discrimination? What if employers allow workers to pump breast milk but only in locations characterized by unsanitary conditions? Is this illegal pregnancy discrimination?

The law related to breast milk pumping in the workplace is evolving. In the past, employers were not explicitly required to accommodate employees who need space and time to pump breast milk while at work. However, provisions within the 2010 Affordable Care Act (ACA) have changed the ways in which employers must respond to lactating employees.

One senior staff attorney employed at the American Civil Liberties Union (ACLU) recently explained the scope of the issue to NBC News. The attorney notes that too often, “Women who choose to continue breastfeeding when they return to the paid workforce face insurmountable obstacles that can make them choose between their jobs and what is in the best interest of their babies.”

The ACLU and the Equal Opportunity Employment Commission (EEOC) recently filed the first-ever lawsuit against an employer for failing to uphold the new ACA provisions protecting a female employee’s right to have sufficient time and a safe, clean space other than a bathroom in which to lactate while at work. Failing to respect these rights may or may not be considered pregnancy discrimination per-se in certain jurisdictions, but with the passage of the ACA, this treatment is illegal nonetheless.

Source: NBC News, “Pumped up: Breastfeeding mothers fight for rights at work,” Allison Yarrow, Jan. 11, 2014

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