Saturday, June 2, 2012

Breast Feeding Rights--Is There a Problem?

A recent Time Magazine cover photo stimulated, among other things, increased discussion about breast feeding rights for nursing mothers.  Specifically, the right to breast feed in public or at work, whether there should be mandatory accommodations for nursing mothers at work, and whether women should have a right to breast feed anywhere and with little or no requirement to cover themselves while nursing.

This is a touchy issue, of course.  I am aware of restaurants being besieged by angry, lactating women after the removal of a nursing mother because it (the nursing) made the patrons uncomfortable.  Retail sales establishments are no better--Target stores have been subjected to "nurse-ins" after one store asked a shopper to move to a more discreet location to nurse.

For employers, the breast feeding issue is a mixed bag. State breast feeding statutes vary dramatically.  In addition, the PPACA ("Obamacare") has a little known and seldom discussed provision amending the Fair Labor Standards Act that requires employers with more than 50 employees to provide nursing women unpaid work breaks and a suitable location (i.e., not a bathroom) to pump breast milk.  The regulations on this provision are still in flux, but employers should be aware of this requirement, as well as requirements of their localities, which are likely more onerous anyway.  A reasonably current listing of states where such laws are in place is here.

In Illinois, for example, women may breast feed, uncovered, anywhere except in churches or places of worship, where they are required to comply with normal dress requirements.  Since I practice in Illinois, I've often wondered how such an "uncovered" situation interplays with a company's obligations and policies on say, sexual harassment, or religious tolerance.  Does a woman who openly exposes her breast to her co-workers to feed her baby have a cause of action for hostile work environment if people stare at her?  Can she claim that comments about her breasts are "unwelcome" under these circumstances?  What about complaints by her co-workers whose religious beliefs or sensitivities are violated by the sight?  I don't know the answers here--there are analogies to be made for either side of the argument.  At least one federal court has ruled that breast feeding as a status is not a protected category (although you can certainly argue that nursing is so closely tied to pregnancy that it should be) and an employer could terminate someone for breast feeding at work.

The issue has also arisen in the relatively rigid environment of the US military.  I suspect that this photo is going to cause the people involved some problems, not so much because of the breast feeding, but because they are in uniform (or in this case, partially out of uniform).  While the military has made some accommodations to women with children, I'm guessing that DoD will draw the line at any public display like this.  But I could certainly see allowing soldiers to express milk in private while on duty, although not in forward areas, or while deployed.

Employer responsibilities here will continue to develop as state and federal courts take these cases.  Advice now--look to your state law for guidance, be aware of the federal requirements, and, as always, don't rush to make a decision.

UPDATE:  Apparently the powers that be took an appropriately dim view of the military moms.  Again, the issue isn't breast feeding as much as it is publicly doing it in uniform.

UPDATE II:  And now the woman who organized the inappropriate photo shoot has been fired from her regular job for misconduct.  This will get interesting.

UPDATE III:  More from the breastfeeding at work front.  Even pro-lactation types are opining against this professor's decision to breastfeed in class in front of her students.

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