Working Mamas and Lactation Law

By: Amy Epstein Gluck

The American Academy of Pediatrics recommends breastfeeding children for six months after birth. While some mothers do and some don’t, how does a working mother cope with breastfeeding in the workplace?

Well, I had the luxury of closing and locking my office door at work to pump breast milk when my three children were babies.

But what about moms who don’t have offices or somewhere private to nurse?

Federal Law Requires Pumping Accommodations

While most moms of new babies find some way to pump breast milk at work, federal law protects their right to do so. In 2010, the Patient Protection and Affordable Care Act (the “ACA”) amended Section 7 of the Fair Labor Standards Act to require all employers, regardless of size, to provide a “reasonable” break time for employees to express or pump breast milk for a nursing baby for one year after the child’s birth and to provide a place, other than a bathroom, in order to do so in private. While the state of the ACA may be unclear, relevant facts about this law may be read here.

Also, since only women can nurse, a workplace that doesn’t follow the federal lactation law (as well as any corresponding state law) treats women differently and adversely in the terms and conditions of employment.

Flight Attendants’ Complaint

So, riddle me this Batman, what’s a nursing flight attendant to do?

One major airline is finding that out the hard way. On May 16, 2017, two flight attendants filed sex discrimination charges with the Equal Employment Opportunity Commission (“EEOC”) against said airline, charging it with failing to accommodate pregnant and breastfeeding employees. The EEOC is the federal agency that enforces the anti-discrimination laws and received a complaint one year earlier from some of the pilots from the same airline alleging similar violations.

This new complaint alleged that the two women flight attendants sought accommodations that would enable them to pump breast milk, but the airline allegedly told them that no accommodations were possible and that they were forbidden from pumping while on duty. Their typical shifts spanned ten hours with back-to-back flights. Because the airline’s alleged actions only affect women, the charge accused the airline of sex discrimination and violations of Title VII of the Civil Rights Act of 1964 and the state pregnancy discrimination law.

One of the attendants allegedly faced disciplinary action and risk of termination as a result of the airline’s policy that penalizes pregnancy-related illness and absences. The airline’s policy and pattern or practice of failing to provide flight attendants with workplace accommodations related to pregnancy and breastfeeding such as paid leave, temporary job reassignments, schedule modifications, medically necessary breaks, or private, sanitary, and accessible facilities to express breast milk and violated the state’s own lactation law.

In the EEOC charge, both flight attendants alleged multiple attempts to communicate with their superiors and request accommodations for pumping breast milk, as well as trying to rearrange their work schedules, but both were rebuffed. The attendants alleged other violations of leave laws and discrimination, one of which you can read about here. Airline representatives have not yet commented on the EEOC charge.

Employer Takeaway:

Nursing and pumping milk while at work can be difficult enough. As employers, ensure that your Employee Handbook—you have one, don’t you?—provides for reasonable accommodations for nursing mothers, providing a private place and sufficient time for employees to nurse in private.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.