Lactation and the Law Revisited
by Jake Aryeh Marcus
Aug 11, 2011
In late 2010, young mother Anna (not her real name) was nursing her daughter in the toddler area of a public pool in the state of Washington. A man she later learned was the pool manager asked her to get out of the pool so he could talk to her.
“I said, ‘Not right now, I’m nursing my daughter.’ He said, ‘Well, I’m going to have to ask you to get out of the pool to do that.’ I said, ‘I have the right to nurse anywhere I’m allowed to be.’ He said, ‘No you don’t. This is private property. We make the rules.’ I said, ‘That’s not true. I have the right to nurse here. Show me the rules that say I can’t.’ He said, ‘I don’t have to show you anything. I’m going to ask you to cover up.’”
When Anna refused to cover up, the manager said he would call the police and have her “forcibly removed.” Undaunted, Anna held her ground, even after the manager had ordered everyone else out of the pool but still had not called the police. Then, Anna told me, “Another employee came up to me and said, aggressively, ‘We’re under no obligation to call the police. You can sit here as long as you want.’ I said, ‘I need a written report about what happened, or show me your policy.’ He said, ‘We’re not going to write you a report. And we don’t have to show you our policy. This is the United States of America, and we have the right to refuse anyone.’
“I said, ‘I need a written record about this incident. I want you to call the police.’ He said, ‘No!’ I said, ‘Well then, I’m going back in the pool and nurse until you call the police to get me out,” and started walking toward the pools. He said, ‘I don’t need the police to get you out,’ and started following me closely, with his hand outstretched toward my wrist. I said, ‘You can’t touch me,’ and continued walking toward the pools. He moved in front of me, blocking my way, and held up his arms at me. Fearing for my physical safety, I backed away from him, turned around, and walked quickly away toward the parking lot to my car, where my aunt and my daughter were waiting in the back seat.”
Before 2009, there might have been very little Anna could have done about this frightening encounter. Washington had on its books only a 2001 statute that exempted breastfeeding from laws against indecent exposure.1 However, in 2009, the Washington State legislature amended its civil rights law concerning public accommodations to forbid discrimination against “a mother breastfeeding her child.”2 Anna now can, and has, filed a complaint with the Washington Civil Rights Commission, alleging violation of her right to be free from discrimination and harassment in “places of public resort, accommodation, assemblage, amusement.”3
Public Breastfeeding Law: Three Years of Progress
In summer 2007, when Mothering published “Lactation and the Law,”4 my article about public breastfeeding statutes, five US states and the District of Columbia had no laws regarding breastfeeding in public. Today, only West Virginia and Idaho have no breastfeeding statutes. In 2007, only seven states and Puerto Rico had public breastfeeding laws that carried some penalty for violating them. That meant that, of the 45 US states with laws relating to public breastfeeding, the laws in 38 of those states were unenforceable. Since 2007, three more states and the District of Columbia have passed public breastfeeding laws that include enforcement provisions. That’s good news, but it still leaves 40 of the 50 states with no enforceable public breastfeeding law.
While this may not seem like much change, the new laws were hard won and controversial. In 2008, after years of lobbying and failed legislative bills, Massachusetts breastfeeding advocates at long last succeeded when “An Act to Promote Breastfeeding”5 was passed. Massachusetts went from being a state with no law protecting public breastfeeding to being one of the few with a law that carries a penalty: a court award of up to $500.6
There’s more good news from New England. After reading my “Lactation and the Law,” Erin Dugan, MPH, CLC, Breastfeeding Coordinator for the Rhode Island Department of Health, sent a memo to fellow members of the Physicians’ Committee for Breastfeeding in Rhode Island suggesting that the 2008 legislative session would be a good time to introduce a stronger breastfeeding law. Disappointed that Rhode Island law only exempted breastfeeding from the offense of disorderly conduct, the committee launched a coordinated lobbying effort supported by over 25 different organizations and businesses. In July 2008, the Rhode Island legislature passed one of the country’s strongest public breastfeeding laws, creating not only a right to breastfeed “in any place open to the public,”7 but also a right to recover monetary damages and attorneys’ fees from “any person, entity or public accommodation that commits or proposes to commit a violation” of the new law.8
However, not all of the new state breastfeeding laws will protect mothers. In 2009, when North Dakota enacted its first public breastfeeding law,9 the legislature arguably made it harder for women to breastfeed in public without harassment. As originally introduced, North Dakota Senate Bill 2344 (SB2344)10 amended the North Dakota crimes code to exclude breastfeeding from all forms of indecent conduct, and created a new section of the state civil rights law prohibiting discrimination on the basis of breastfeeding in public accommodations and in the workplace.11 North Dakota would have gone from being one of a handful of states with no law protecting breastfeeding to having one of the strongest laws in the country. But on February 16, 2010, after the bill had made its way to the North Dakota Senate Human Services Committee, SB2344 was completely gutted.12 The committee removed the section of the bill that would have created a civil right, thereby also removing the only mechanism for enforcing any protection the bill might have provided. The committee also removed a section creating a right to pump breastmilk in the workplace.
The Senate Human Services Committee not only removed vital portions of SB2344, it also added some words of its own: “discreetly,” and “if the woman acts in a discreet and modest manner.” And instead of making the breastfeeding law a new section in North Dakota’s civil rights code, the bill added this to the state’s health code—without any penalty for its violation: “Right to breastfeed. If the woman acts in a discreet and modest manner, a woman may breastfeed her child in any location, public or private, where the woman and child are otherwise authorized to be.” Who decides what “manner” is “discreet and modest”? The law doesn’t say. Until a court decision offering further guidance on the language, this distinction will be drawn by store owners and local police.
The amended SB2344,13 which was signed into law as North Dakota Century Code §23-12-16,14 isn’t just vague, ambiguous, and entirely lacking in protections; it arguably makes some public breastfeeding a crime. Rather than excluding breastfeeding from the crime of “indecent exposure,” as so many other states have done, SB2344 amended the criminal law as follows: “The act of a woman discreetly breastfeeding her child is not a violation of this section.” Logically, a judge interpreting this statute could conclude that, under the amended indecent-exposure statute, a woman breastfeeding “indiscreetly” is committing a crime.
Workplace Pumping Law: Two Years of Change
Since 2008, when I reported in another article for Mothering, “Pumping 9–5,”15 that only 11 states and Puerto Rico had laws requiring employers to provide breaks for employees to pump breastmilk, US state legislatures have had greater success in passing such laws than bills that protect public breastfeeding. Currently, 17 states and the District of Columbia have enforceable laws that protect workplace pumping. With relatively little fanfare, new laws guaranteeing unpaid break time for pumping breastmilk while at work, and private space in which to pump, were passed in Arkansas,16 Maine,17 Montana,18 Colorado,19 Indiana,20 and Vermont21—despite a crashing economy, and a reluctance by legislators to impose on employers anything that might be perceived as a burden.
2010: The Year Breastfeeding Legislation Failed
After the relatively successful year of 2009, the failure in 2010 of all state breastfeeding legislation came as a surprise. Workplace pumping bills were pending in Ohio,22 Michigan,23 and Iowa,24 along with two bills in Pennsylvania.25, 26 However, by the end of 2010, four of those five bills had died in state legislative committees, apparently abandoned at the end of those states’ legislative sessions. Supporters of Michigan House Bill 5515, which would have amended Michigan’s Civil Rights Act to prohibit breastfeeding discrimination in public accommodations,27 went so far as to start a Facebook page to organize to exert pressure on legislators to bring the bill up for a vote.28 That effort having failed, the supporters are using Facebook to organize efforts to reintroduce the bill in 2011.
One pending state breastfeeding bill did make it out of committee: Iowa’s Senate Bill, called “The Family Friendly Workplace Act.” As passed by the Iowa Senate, the Act required that Iowa employers provide unpaid breaks and private space for employees who needed to pump breastmilk while at work. But then the Act went to the Iowa state House, where Representative Nathan Willems, D-Lisbon, introduced an amendment that would require a pregnant woman to notify an employer 60 days before giving birth that she plans to breastfeed, and will need time and accommodations to express milk at work. She would also have to sign and notarize an agreement that states the intent and manner in which she plans to pump her breastmilk.29
The amendment met with opposition from breastfeeding advocates like Katie Irvin Carlson, a Des Moines civil rights lawyer who lobbied for the senate version. According to Carlson, the amendment “gutted the whole purpose and ignored the reality of what a breastfeeding mother goes through. I think that the law, as amended, would have stigmatized nursing mothers more than they already were, and put onerous burdens on working mothers that would in fact discourage, rather than encourage breastfeeding.”30 Whatever Rep. Willems’s intention, the Iowa workplace pumping bill that eventually passed the state Senate didn’t make it to the House floor before the legislative session ended, leaving Iowa with no workplace pumping law.
What About Court Decisions?
When, in July 2006, LaNisa Allen went to work as a temporary employee in a Totes/Isotoner plant in Ohio, she was breastfeeding her five-month-old son. She told her employer that she would need a place to pump, and was ultimately told she could use her breast pump in the ladies’ room during her lunch break. Allen told her employer she wasn’t sure she could make it until her 11 a.m. lunch break, since her shift began at 6 a.m. She also asked for a chair in the ladies’ room. Her employer refused her the chair, and never responded to her request for an earlier pump break. When Allen was caught pumping her breasts in the ladies’ room at 10 a.m. rather than 11 a.m., she was fired.31
Ohio doesn’t have a workplace pumping statute, so Allen filed suit under the state’s Pregnancy Discrimination Act (PDA). What made the trial court’s decision in this case particularly interesting is that rather than find, as other US courts have, that breastfeeding isn’t covered by the PDA (which forbids discrimination on the basis of pregnancy, birth, and “related conditions”), the judge held that:
[H]er discrimination claim is not based on a claim that she was discriminated against because she was breastfeeding but rather she was discriminated against because she was lactating. According to Plaintiff, lactation is a physical condition in which mammalian breasts or udders secrete milk. Every woman who endures long-term pregnancy will begin to lactate. Therefore, lactation is a condition related to pregnancy.
This court disagrees with this reasoning. Allen gave birth over five months prior to her termination from Totes. Pregnant women who give birth and choose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, Allen’s condition of lactating was not a condition relating to pregnancy, but rather a condition relating to breastfeeding.32
The judge appeared to argue that, had Allen been discriminated against immediately after giving birth, when milk production was beyond her control, the law would protect her. However, having caused the lactation to continue by choosing to breastfeed her child, Allen was not protected by the PDA from discrimination. This left the case ripe for the Ohio Supreme Court to hold that such reasoning punished women continuing to engage in lactation after their children are born. It also highlighted the illogic of previous court findings that lactation is not related to childbirth, and is therefore not protected under discrimination statutes that forbid discrimination on the basis of pregnancy and childbirth-related conditions.
Unfortunately, the Ohio Supreme Court did not rise to that challenge. Instead, the majority held that, because Allen could have been fired for taking unauthorized breaks to pump, the Court did not need to decide whether discrimination law applied to her case.33 Not all the judges agreed in this highly controversial ruling. In a lengthy concurring opinion (that is, the judge agreed with part but not all of the ruling), Ohio Supreme Court Justice Maureen O’Connor wrote that while she believed Allen’s case could not be decided in her favor, the legal issue of whether breastfeeding discrimination was covered by the Ohio PDA because lactation is a condition associated with pregnancy and childbirth was one the court could and should decide:
The question whether Ohio law recognizes discrimination claims based on lactation is one of great general interest. Allen and Isotoner, as well as all Ohio’s employees and employers, are entitled to the answer and to guidance on the contours of Ohio’s employment laws. It is our duty to provide that guidance and to answer the questions posed in this controversy.34
In what might be seen as a glimpse of future decisions, O’Connor wrote that the Ohio PDA “prohibits employment discrimination against lactating women.”35
Criticizing the lower court’s ruling, Justice O’Connor wrote:
[T]he trial court found that discrimination on the basis of lactation is not the same as discrimination on the basis of pregnancy because “Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition relating to breastfeeding.” I find that conclusion curious and inaccurate.37
Justice O’Connor then proceeded to provide a detailed description of the lactation process, showing its inseparable relationship to childbirth.
Because O’Connor’s opinion is a concurrence and was not shared by the majority of the Justices in this case, it is not Ohio law. However, it could serve as a model for future state and federal cases of lactation discrimination, and the interpretation Justice O’Connor provides could be used in legislative debates concerning the proper scope of the term “pregnancy discrimination.”
What About Federal Legislation?
The federal Breastfeeding Promotion Act (BPA) of 2009 would provide, among other things, mandatory unpaid pumping breaks for some US workers. Although introduced in several successive congressional sessions, the BPA was still stalled in committee with too few sponsors in both the House and the Senate when the 2009–2010 legislative session ended and, in legislative terminology, it was “cleared from the books.” On August 1, 2011, Oregon Senator Jeff Merkley and New York Congressperson Carolyn Maloney introduced the Breastfeeding Promotion Act yet again.37
However, the federal Affordable Care Act contained part of the BPA as an amendment to federal labor law. The new Section 207(r) of the Fair Labor Standards Act (FLSA) requires unpaid break time for non-executive, hourly employees to pump breastmilk for a child under the age of one year. However, it is unclear what penalty violation of this new law carries, and no actions by the Department of Labor (DOL) against an employer have been reported. (For more information and contact information, employees can see DOL Fact Sheet #73: “Break Time for Nursing Mothers.”38)
How Far Have We Come in Protecting Breastfeeding Rights?
It is easy to come away from 2010 feeling pessimistic about the fate of new initiatives in breastfeeding legislation. However, it’s useful to remember that the first state breastfeeding law was passed only 17 years ago, in 1994. Since then, 27 enforceable state laws have been passed, no fewer than 10 of them between 2007 and 2010. From a historical perspective, and acknowledging that we still have a long way to go, the states have actually been moving briskly in the direction of protecting women who are breastfeeding and/or pumping their breastmilk.
No one is more aware of this than Anna of Washington, as she proceeds with her state civil rights case against the public pool and its employees, who threw her out for nursing her baby late last year. Her reason for wanting her identity withheld? “I don’t want irate mothers organizing nurse-ins. I want the law to hold the pool accountable.” Whether or not Anna satisfies her desire for vindication of her rights under Washington state law, the challenge now is to redouble our efforts to get legislation passed that establishes substantive rights to breastfeed and to pump breastmilk. It is equally important to defeat legislation that lacks adequate legal procedures that will enable all lactating women to use the courts and regulatory agencies to enforce the rights that they have so long been denied.
Jake Aryeh Marcus is a lawyer who specializes in civil rights and the practice issues of non-physician healthcare practitioners. Politics Editor for Mothering magazine until it ceased publication earlier this year, Marcus speaks frequently at conferences on legal issues relating to parenting and women’s rights. She can be reached through her website.
1. Washington Revised Code §9A.88.010 (2001); http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.88.010 (last accessed 5 August 2011).
2. Washington Revised Code §49.60. 215 (2009); http://apps.leg.wa.gov/rcw/default.aspx?cite=49.60.215 (last accessed 5 August 2011).
4. Jake Aryeh Marcus, “Lactation and the Law,” Mothering 143 (July/August 2007); http://mothering.com/breastfeeding/lactation-and-the-law.
5. Massachusetts General Laws Annotated chapter 111 §221 (2008).
7. Rhode Island General Laws §23-13.5-1 (2008); http://www.rilin.state.ri.us/Statutes/TITLE23/23-13.5/23-13.5-1.HTM (last accessed 5 August 2011).
8. Rhode Island General Laws §23-13.5-2 (2008); http://www.rilin.state.ri.us/Statutes/TITLE23/23-13.5/23-13.5-2.HTM (last accessed 5 August 2011).
9. North Dakota Century Code §23-12-16 (2009).
10. North Dakota Senate Bill 2344, Senate Journal (2009–2010); http://www.legis.nd.gov/assembly/61-2009/bill-actions/ba2344.html (last accessed 11 December 2010).
11. North Dakota Senate Bill 2344 (2009–2010); http://www.legis.nd.gov/assembly/61-2009/bill-text/JAGK0100.pdf (last accessed 4 August 2011).
12. Proposed Amendments to Senate Bill No. 2344, Adopted by the Senate Human Services Committee (16 February 2009); http://www.legis.nd.gov/assembly/61-2009/bill-text/JAGK0102.pdf (last accessed 4 August 2011).
13. North Dakota Senate Bill 2344, First Engrossment (2009–2010); http://www.legis.nd.gov/assembly/61-2009/bill-text/JAGK0200.pdf (last accessed 4 August 2011).
14. North Dakota Century Code §23-12-16 (2009); http://www.legis.nd.gov/cencode/t23c12.pdf (last accessed 5 August 2011).
15. Jake Marcus, “Pumping 9–5,” Mothering 148 (May/June 2008); http://mothering.com/breastfeeding/pumping-9-to-5.
16. Arkansas Statute Annotated §11-5-116 (2009).
17. Maine Revised Statutes Annotated title 26, §604 (2009); http://www.mainelegislature.org/legis/statutes/26/title26sec604.html (last accessed 5 August 2011).
18. Montana Code Annotated §39-2-215 et seq. (2009).
19. Colorado Revised Statutes §8-13.5-101 et seq. (2008).
20. Indiana Code §22-2-14-2 (2008).
21. Vermont Statute Annotated title 21, §305 (2008); http://www.leg.state.vt.us/statutes/fullsection.cfm?Title=21&Chapter=005&Section=00305 (last accessed 5 August 2011).
22. Ohio House of Representatives Bill 488 (2009–2010); http://www.legislature.state.oh.us/bills.cfm?ID=128_HB_488 (last accessed 4 August 2011).
23. Michigan House of Representatives Bill 5515 (2009–2010); http://www.legislature.mi.gov/documents/2009-2010/billintroduced/House/htm/2009-HIB-5515.htm (last accessed 4 August 2011).
24. Iowa Senate File 2270 (2010); http://coolice.legis.state.ia.us/Cool-ICE/default.asp?Category=BillInfo&Service=Billbook&menu=true&ga=83&hbill=H8595 (last accessed 5 August 2011).
25. Pennsylvania House of Representatives Bill 1303 (2009–2010); http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2009&sind=0&body=H&type=B&bn=1303 (last accessed 9 January 2011).
26. Pennsylvania House of Representatives Bill 1350 (2009–2010); http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2009&sind=0&body=H&type=B&BN=1350 (last accessed 9 January 2011).
27. Michigan House of Representatives, Bill 5515 (introduced 14 October 2009); http://www.legislature.mi.gov/documents/2009-2010/billintroduced/House/htm/2009-HIB-5515.htm (last accessed 4 August 2011).
28. Pass Michigan House Bill 5515 (19 October 2010); http://www.facebook.com/pages/Pass-Michigan-House-Bill-5515-HB-5515/154711827899858 (last accessed 4 August 2011).
29. Molly Hottle, “Breast-milk Backers Irked,” Associated Press (24 March 2010): http://www.omaha.com/article/20100324/NEWS01/703259997 (last accessed 5 August 2011).
30. Private communication (20 December 2010).
31. All factual information is from the Ohio Supreme Court opinion in Allen v. Totes/Isotoner Corp., 123 Ohio St.3d 216 (2009); http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-4231.pdf (last accessed 5 August 2011).
32. Allen v. Totes/Isotoner Corp., No. CV06 03 0917, Court of Common Pleas, Butler County, Ohio (31 July 2007); http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-4231.pdf (last accessed 5 August 2011).
33. Allen v. Totes/Isotoner Corp., 123 Ohio St.3d 216 (slip opinion at 4) (2009); http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-ohio-4231.pdf (last accessed 5 August 2010).
34. Ibid. (slip opinion at 8).
35. Ibid. (slip opinion at 6).
36. Ibid. (slip opinion at 13).
38. US Department of Labor, Wage and Hour Division, Fact Sheet #73: Break Time for Nursing Mothers under the FLSA (revised December 2010); http://www.dol.gov/whd/regs/compliance/whdfs73.htm (last accessed 5 August 2011).