Fired for pumping

[lacysmommy]

I just found this article:

LaNisa Allen, a former general laborer at a Totes/Isotoner Corp. warehouse in West Chester, is suing the company, saying it engaged in illegal gender discrimination by denying her extra restroom breaks to relieve pain caused by breast milk engorgement.

This has gone through court with Totes winning the trial and appeal. Totes says there is legal precedent for not allowing an extra pumping break. How can this be happening? Hopefully the Supreme Court has some common sense.

[kalisis]

holy wow.

[BabyBearsMummy]

: :

[kriket]

I'm sure that because she was temp they were 'looking' for a reason to fire her. I'm just sad and disappointed that they had to do it this way. and of course, my neck of the woods is in the public eye fro BFing again. :

[PGTlatte]

I hadn't heard of this until now.....but I will be contacting the company and sharing my disgust over their actions toward her and informing them that they will lose me as a customer for life unless they change their position on this and establish a program for all of their lactating employees, including temps.....and sending them some information (there is an article I need to dig up) about the benefits to employers of setting up a program for lactating employees...better employee retention, fewer missed work days due to child illness...and for employees receiving medical insurance, those costs are lowered by the baby having fewer illnesses...and the medical risks associated with a lactating mother not being given adequate time to express milk while at work (plugged ducts, mastitis).

[kalisis]

That's a great idea llp34. Would you be interested in sharing it so that maybe others could send it to? If we could bombard them with letters, that would be a better showing.

[PGTlatte]

When it is done, I will be happy to share it. It may take several days (or more) though, because we are on vacation right now ! (I saw the shuttle go up tonight !) I will work on it as I can and share it when it's done ! I would love for more people to write this company about the benefits to everyone when employers support pumping at work.

Originally Posted by kalisis

That's a great idea llp34. Would you be interested in sharing it so that maybe others could send it to? If we could bombard them with letters, that would be a better showing.

[aylaanne]

I wonder if LLL has a form letter to give to employers that we could modify in support of this woman?

[PGTlatte]

Originally Posted by aylaanne

I wonder if LLL has a form letter to give to employers that we could modify in support of this woman?

This happened back in 2005:

http://www.dispatch.com/live/content...e.html?sid=101

I am interested in letting the company know how I as a consumer, and former working/pumping mom, feel about their actions. It is probably too late to help her but may make a difference for their lactating employees in the future.

[mamajake]

Anyone who wants to watch the oral arguments before the Ohio Supreme Court in this case (they were a few days ago) go to: http://www.ohiochannel.org/media_arc...ile_id=118782&

Live streaming rocks!

[kriket]

Originally Posted by mamajake

Anyone who wants to watch the oral arguments before the Ohio Supreme Court in this case (they were a few days ago) go to: http://www.ohiochannel.org/media_arc...ile_id=118782&

Live streaming rocks!

thanks for the link mama! I think its important that everyone watch this, I have 15 mins left to watch but I have to get to bed! So far it seems this woman is hiding under the lactivist cape, where she is probably in the wrong. Like I said I still have 15 mins left, but as an Ohioan, They are about to decide something very important to lactating mamas in my state! : hopefully our code gets explicit language!

[Turquesa]

Here's the part of the article that really got me:

Totes, which prevailed against Allen in a 2008 trial and a subsequent appeal, argues that the company didn't discriminate because breastfeeding doesn't legally constitute an illness or medical condition.

Neither does having your period. Should women get in trouble for going to the restroom to change their tampons? Heck, the urge to urinate, in itself, is not an illness or medical condition. Let's just make bathroom breaks a 100% fire-able offense. The "logic" of the defense attorney just doesn't pan out. It looks like Totes is willing to go to quite a stretch to discriminate against its female employees.

[kriket]

Originally Posted by Turquesa

Neither does having your period. Should women get in trouble for going to the restroom to change their tampons?

She was fired because she was taking breaks that she didn't ask to take. Not because she was pumping. They don't care what she was doing in there, she should have asked to go BEFORE she went, not after she was confronted about going.

[mamajake]

Originally Posted by kriket

She was fired because she was taking breaks that she didn't ask to take. Not because she was pumping. They don't care what she was doing in there, she should have asked to go BEFORE she went, not after she was confronted about going.

Actually, according to the legal briefs in this case, Company policy allowed bathroom breaks for men and women, and bathroom breaks for menstruating women. No special requests needed for those breaks. The brief to the Ohio Supreme Court on behalf of Totes specifically states that the problem was what she was doing in the bathroom and specifically says she could have taken bathroom breaks for "excretion of bodily waste" [Merit Brief of Defendant-Appellee, Totes>>Isotoner Corp. at p. 9]. So clearly the employer DID care what she was doing in there. No one cared about the breaks until she was busted pumping her breasts rather than changing a tampon or, ya know, the other acceptable bathroom occupation.

The lower court decision being appealed to the Ohio Supreme Court is that "lactation" immediately following birth is a condition related to pregnancy (protected against discrimination by Ohio's Pregnancy Discrimination Act) but that lactation at five months post-partum is NOT related to pregnancy because the woman CHOSE to breastfeed leading to her still lactating at five months post-partum.

[kriket]

do you have the written brief? I have only seen the video of the OSC where no one made mention of what she was doing, only that arrangements were made and she went around them.

Plus, taking 15 seconds to pee is a far cry from 15-30 to pump.

[mamajake]

Originally Posted by kriket

do you have the written brief? I have only seen the video of the OSC where no one made mention of what she was doing, only that arrangements were made and she went around them.

Plus, taking 15 seconds to pee is a far cry from 15-30 to pump.

Yup. I have the briefs and the lower court opinions. I haven't had a chance to watch the oral argument, though I will this weekend. The press on this case has been inaccurate because the difference between an Americans with Disabilities Act claim and a Pregnancy Discrimination Act claim has not been made clearly in the articles and it really is a huge difference.

No one complained she was taking too long in the bathroom. No one even noticed. Her female supervisor came in the bathroom to pee (or whatever) and found her pumping. The employer had not responded to her request to move (not add) her break time so she could pump before she was in pain.

Of course the Company argument is that she was doing something without permission and that was reason for her being fired. But the law being decided in this case is way beyond that - the legal question is whether lactation is a "medical condition related to pregnancy" so protected by the Pregnancy Discrimination Act. The argument against this is one that has crushed sex discrimination litigation for years - if the discrimination is not against a a woman "similarly situated" to a man who does not suffer discrimination, it is not prohibited. Therefore, the whole point of the Pregnancy Discrimination Act was to attempt to eliminate the search for the pregnant man (benefited by discrimination against the pregnant woman). What we have now is the search for the lactating man.

[jocelynr]

The lower court decision being appealed to the Ohio Supreme Court is that "lactation" immediately following birth is a condition related to pregnancy (protected against discrimination by Ohio's Pregnancy Discrimination Act) but that lactation at five months post-partum is NOT related to pregnancy because the woman CHOSE to breastfeed leading to her still lactating at five months post-partum.

What about the AAP's recommendation to breastfeed for AT LEAST a year?

[mamajake]

Originally Posted by jocelynr

What about the AAP's recommendation to breastfeed for AT LEAST a year?

Courts don't care about the AAP and frankly that is irrelevant to whether it is sex discrimination under the law.

A parallel used in the brief is to pregnancy - a condition one can terminate but no employer can force you too to keep your job. Judgments aside one way or the other, the logic is more clear. The fact that lactation can be stopped if you don't breastfeed does not alter the biological fact that pregnancy put it in motion.

[kriket]

Originally Posted by mamajake

Yup. I have the briefs and the lower court opinions.

may I have a link! I'm still watching the OSC hearing, so far its been slow. I haven't heard ADA brought up yet. I'm glad I haven't I hate when pregnancy is viewed as a disability.


Oh, and when you are watching the OSC vid, cover your ears where the lawyer talks about making a distinction between breastfeeding and lactation. It can only be described as the logic of a man.

I keep thinking that this kind of thing should be under FMLA. I know its not leave, but 'lactation' as they love to call it, has more to do with family then it does with biological function! He said once that ONLY long term pregnancy can lead to lactation... um, what about the mamas that induce lactation in preparation for adoption? Are we going to exclude them from this ruling?

[mamajake]

Originally Posted by kriket

may I have a link! I'm still watching the OSC hearing, so far its been slow. I haven't heard ADA brought up yet. I'm glad I haven't I hate when pregnancy is viewed as a disability.

I don't think the briefs are available on-line except through pay services (Lexis or Westlaw). I had to buy mine though you can contact the court and see if there is another way to get them.

And, yeah, ADA isn't the issue (thankfully in my view). The press hears "accommodation" and writes like ADA is the issue.

Originally Posted by kriket

Oh, and when you are watching the OSC vid, cover your ears where the lawyer talks about making a distinction between breastfeeding and lactation. It can only be described as the logic of a man.

Sadly, this is critical to the law being decided - which is totally crazy making. Remember that the Pregnancy Discrimination Act was passed after federal courts decided that pregnancy discrimination isn't sex discrimination - it is discrimination against "pregnant persons." head:desk

Originally Posted by kriket

I keep thinking that this kind of thing should be under FMLA. I know its not leave, but 'lactation' as they love to call it, has more to do with family then it does with biological function! He said once that ONLY long term pregnancy can lead to lactation... um, what about the mamas that induce lactation in preparation for adoption? Are we going to exclude them from this ruling?

The law as currently drafted requires jamming this into "medical condition" hence lactation (biological process) versus breastfeeding (willful act). The whole argument is a construction. <sigh> And your question as to lactating people who weren't pregnant is a good one and one that would have to be pounded out in yet more agonizing litigation.