Sidebar: Whatever Happened to Delta Airlines?

Sidebar to Lactation and the Law Revisted

In October 2006, airline employees forced Emily Gillette off a Delta Air Lines flight about to leave from Burlington, Vermont, for refusing to cover her nursing daughter’s head with a blanket. That incident led to the first nationally organized nurse-in: A month later, mothers protested at Delta ticket counters at more than 30 airports across the US.1 The nurse-in was hailed as a success by lactation activists, and Gillette filed a complaint for violation of her civil rights under Vermont law. However, both the legal action and the struggle to hold Delta accountable drag on.

In 2008, the Vermont Human Rights Commission found “reasonable grounds” that Mesa Air Group and Freedom Airlines had discriminated against Gillette in violation of the Vermont Fair Housing and Public Accommodations Act.2 This ruling was a preliminary win for Gillette, and a mixed one. According to the Investigative Report issued by the Vermont Human Rights Commission, under the “Connection Agreement” between the airlines, Freedom was an independent contractor for which Delta was not liable.3 While Gillette argued that Freedom was an agent of Delta, in a 3–2 decision the Commission found that Delta had not discriminated against Gillette. In 2009, Gillette and the State of Vermont filed suit in federal court against Mesa, Freedom, and Delta. Then, according to Gillette’s lawyer, Elizabeth Boepple,

Time dragged on, with a couple of requests from the airlines for extensions of time to answer the complaints. When it finally seemed like we would be moving forward, two days before the answer was due in early January 2010, Mesa and Freedom filed a voluntary petition for chapter 11 protection under the bankruptcy code.4

Following the procedure customary in bankruptcy proceedings, the bankruptcy court stayed the lawsuits against Mesa and Freedom. But it also ordered that the lawsuit against Delta, which is not involved in the bankruptcy proceeding and is financially solvent, be stayed as well. Using the shield of the bankruptcy court’s order, Delta still has filed no legal documents in Gillette’s lawsuit against it. Attorney Boepple says, “Delta has been perfectly content to let Mesa/Freedom’s bankruptcy keep them from even engaging with us in a dialogue. Delta’s corporate arrogance continues to rule their actions.”5

Meanwhile, Emily Gillette has had two more children. She has breastfed them, as she did young River on that Delta flight four and a half years ago, and she tries to remain optimistic about the litigation. Nor is her fight with Delta the only breastfeeding struggle she has had. Each of her babies had a complex tongue-tie.

Having to fight so hard .?.?. it seems appalling all over again to then have to fight against a society that remains largely abrasive toward mothers breastfeeding their babies in public. I have emerged a third time, from an acutely difficult start to breastfeeding, triumphant that I am breastfeeding independent of support, and it seems now nothing should be allowed to stand in my way.

And yet, two babies later, it doesn’t seem like much has changed since I was kicked off a plane with my family. New stories of discrimination and harassment continue to circulate, women continue to have to fight for their right to feed their babies—or, even more discouraging, some women continue to choose formula over breastfeeding—based on our incredibly abnormal societal norms.6

Though she will stay in the litigation until the end, Gillette says,

I wish I believed my case was going to create groundbreaking policy change on a large corporate level, but the way the courts work, it is proving a lengthy and expensive process without promise of eventual victory. Over four years later, we still don’t know how this case is going to turn out, and we remain in a holding pattern in the court system.

—Jake Aryeh Marcus

Past Articles:

Lactation and the Law

Pumping 9 to 5


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. Cecilia Kang, “Mothers Rally to Back Breast-Feeding Rights,” The Washington Post (22 November 2006): (last accessed 5 August 2011).

2. Vermont Human Rights Commission, Investigative Report PA07-0007, Gillette v. Delta Air Lines & Mesa Air Group & Freedom Airlines (29 February 2008). {<Peggy: Jake says this is not posted online.}

3. Vermont Human Rights Commission, Investigative Report PA07-0007, Gillette v. Delta Air Lines & Mesa Air Group & Freedom Airlines (29 February 2008): 33. {<Peggy: Jake says this is not posted online.}

4. Personal communication (9 December 2010).

5. Ibid.

6. This and subsequent quotation: Personal communication (14 December 2010).


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