Ohio court rules that Totes/Isotoner discrimination is ok - Page 7

[khaoskat]

It may very well be that toes had other issues with Ms. Allen, and that the final straw was taking the unauthorized breaks. In totes Answers to Discovery they denied that Ms. Allen was a "perfect" employee.

Again, there is so much that Ms. Allen didn't do, that I cannot be sympathetic towards her in this case. In a way I kind of find it hard to believe the only reason she was terminated from her previous job was forgetting to clock out when she left. I have worked numerous jobs where I have been in a hurry and either forgot to clock out or thought I had gotten clocked out (but the clock didn't register my swipe on the way to lunch - like I swiped to fast or to soon after another employee, and then found out when I went to clock back in), but management has always been able to fix the problem.

I understand people's frustration, but I don't think that Ms. Allen's case is the perfect one for our outrage at the system. I just think that there is more to the story than has been presented to us by either totes or Ms. Allen. I think that there are too many holes in her case to be the perfect case to put forth as a precedent setting case.

I found it hard to put pumping into my schedule when I was working full time in an office. It is not all about just lowing paying jobs. My boss, prior to that job was, well i cannot go into too much details, but a real piece of work and she was a women. She didn't want anyone even using their lunch hour for personal business. She tried to put rules into place that would prevent people from even going to a DR appt between 8 am to 5 pm, even knowing that there were several moms who were primary caregivers of kids and at least one of us pregnant....and this coming from the women who had been off work under disability for the last 9 months.

[elanorh]

Khaoskat -

I didn't say everyone, you didn't put the quote into what I said from a previous poster. I was responding to why some people had no issue with her being terminated. If you are going to skew someone's words to further your stance than be my guest.

Here is your statement again. Please explain how your statement wasn't implying that the majority of the posters in this thread are in agreement with you:

If you read what most of us have said, if ALLEN HAD MADE AN ATTEMPT prior to being "caught" taking these breaks to modify or seek alternative accomodations we would be siding with her. But the undisputed fact by her is that she utterly failed to do so, nor did she even think about doing such.

You were replying to a poster who was upset and wondering why some of the posts in this thread had been in her opinion unsupportive of lactivsm in this case. Perhaps you meant to type "most of us who oppose Allen" in your response but what you typed was that most of us in this thread believe as you stated in the quote above. That's simply not true based on the posts others have made in this thread. There are some who do agree with you but I do not believe they are in the majority in this thread.

I agree that some people are able to lift themselves out of poverty. But I think it is inappropriate to blame those who aren't able (or don't) for being lazy and not trying. I've worked a lot of with low-income people in a couple different jobs (one as a college prep coach for low-income high school students). There is a culture of poverty, in which some people simply don't learn how to advocate for themselves, and lack the tools to move forward. Unless someone is able to help those individuals learn how to negotiate the steps up, those individuals often are labeled as 'lazy' or 'unmotivated' when in reality, they simply didn't understand what they needed to do. Not everyone who is 'poor' is in this category, but there are those who are. I can absolutely see some of the students I've worked with, in Allen's situation, doing what Allen did and not realizing that some would believe that they should have handled the matter differently. Not because they are lazy, or trying to stick it to the man, but simply because they wouldn't have thought to go up the chain of command.

If we look at the statistics, women who work low paying jobs are least likely to breastfeed, and least likely to breastfeed for a longer duration. This is not because women who work those jobs are lazy, ill-informed, low-class people. It's because those jobs and those employers are least willing to support a lactating mother (and, yes, there is the "Well, WIC will give you formula" argument which gets dangled in front of those mothers as well).

I too recommend reading Nickel and Dimed. As lactivists, we need to understand the challenges facing women in these situations. And we need to be supporting them in the effort to making pumping at work a normal, accepted, and supported thing - not just for lawyers and college professors, but for teacher's aides and waitresses, and yes, women who work at Totes/Isotoners.

If we don't do this - if we don't acknowledge, recognize, and support these women in overcoming these challenges - then we are helping to maintain and ratify a class structure in which the poor/underpriviledged (the ones who need the benefits of breastfeeding the most, one could argue) are the ones who seldom if ever are able to breastfeed for the recommended minimum periods of time -- while the rich/well off are able to do so. This is not fair. It's an "I've got mine, who cares about you, if you wanted this you would work for it" attitude.

[krystyn33]

Well said, elanorh.

I have a Master's and DH has a BA. We both work outside the home and we're living below the poverty line, despite our many advantages. I wish we had enough money (we live paycheck to paycheck, with no savings) to move to this mythical land of unlimited income opportunity for those willing to work hard enough. DH was perfectly willing to work as a janitor and was turned down because he was overqualified.

Our almost 10% unemployment rate does not reflect the UNDERemployed. In this economy, in an "at will" state like mine (which has no legal protections for working mothers who pump), employers indeed have a lot of power.

I applaud those single mothers who manage to do it all, pulling themselves up by the bootstraps: working, studying, breastfeeding. It is amazing. I'd love to know how they do it without social support measures--accommodations for lactation needs, time off to care for sick children, affordable daycare (one mom I know makes only $200 over the limit for vouchers and spends $1400 a month on care for her two preschool age children--and these are at the lower cost, affordable centers). It is hard enough getting by financially as a mother, and trying to maintain lactation to sufficiently meet a child's need is an enormous challenge, even with some measure of support.

Consider this:

Dr. Shelley Correll’s groundbreaking research released in 2005 is a compelling addition to the long line of studies that explore the roots of this maternal wage gap...
The basic findings: Mothers are 44 percent less likely to be hired than non-mothers for the same job given the exact same resume and experience for the two groups of women (mothers and non-mothers). Her study also found that mothers are offered significantly lower starting pay...
Critics often assume that the mothers studied tended to have less education or work experience than non-mothers, thus skewing the findings; yet the Waldfogel study filtered the data to account for education and work experience,5 and the Correll study had equal resumes so there weren’t any differences in education and work experience.

http://www.momsrising.org/manifesto/chapter7

[khaoskat]

If you refer back to post #113, you will see that I directly quoted the original poster who was referring to those of us who were defending the employer's decision.

I think most people, when using common sense, can take my statement below that as a direct response to her comment about those defending the employer, and not a blanket statement about everyone who responded in this thread.

As for your other statements, I am sorry, my experience is totally different. There are a ton of programs out there for kids to get themselves up and out. Our school district offers a program that is IMHO discriminatory. We have a school that is a College Prep program, with an almost 100% graduation rate. Why do I feel that this school is discriminatory, is because you are only eligible to go to this school if no one in your family has ever gone to college before.

Our Department of Job and Family Services offers tons of programs. When you go in to apply for Food Stamps, WIC, Insurance, they can make referrals for people to the job center services and training. Many of them do not take advantage of it..

I see people who are failing to pay their child support and have criminal charges referred to tons and tons and tons of programs to help them find employment and get training...but most of them do not take advantage of it and would rather go to jail.

There is always gong to be a "minimum wage" and "minimum wage jobs", unless we do income equalization and make it so that everyone gets paid the same across the board regardless of what they do for a living or how much or how little education they have received.

Everyone wants to see that nursing mothers be afforded the opportunity to pump and feed their children, but if we are going to fight it in a Court, then we need a case that is perfect, otherwise we are going to have what has happened in this case.

I think many of the Justices were looking for the perfect case (as in no loopholes, i's dotted, and t's crossed) to come out and say it is covered. We have three Justices, including the Chief Justice who have already said it is covered.

[elanorh]

But, the reality that we will always have minimum wage jobs does not mean that we have to treat the people working those jobs inhumanely and with disrespect, and it doesn't mean that those people don't deserve a living wage - income sufficient to meet basic expenses, and respect and support such that they're able to do such basic human things as maintain lactation so they can breastfeed their babies.

In terms of your local high school's program, khaoskat - it sounds good to me. In my experience, low income students whose parents had college backgrounds had the skills and tools to be proficient and capable at the college level with little if any assistance. However, those students who might have been the first in their families to graduate from high school were often completely out of their elements - and so were their families, in terms of being able to support them. That's why most universities now have an office which specifically assists first-generation college students - the first generation to try to make that leap is the one which struggles the most to make that transition. It's not discriminatory, it's just the way it works. Most of them need more help, and lack as many tools in their toolbag compared to their counterparts whose parent(s) have college degrees. Having worked on college campuses in a capacity which dealt with retention, I've seen this firsthand (beyond the college prep work I've done).

[kijip]

I get that the firing of Ms Allen was legal, what I don't get or believe was that it was just or reasonable. Ms. Allen's employer could have offered her some flexibility on seeing why she needed the different break schedule. The idea keeps popping up that it's not the perfect case or the perfect situation. What you have is a mother, making the relatively low wage with very little autonomy within the workplace who despite the barriers faced by breastfeeding mothers in her situation made breastfeeding a priority. A minority of women overall are still breastfeeding at 5-6 months and I think Ms. Allen deserves credit for sticking with bf. Not to be picked apart for not following company policy. Her first obligation as a mother is to her baby, and to feeding that baby. Not to Totes. Sure, it is possible that she could have done x y or z differently. But it is also possible that Totes could have done something differently- they could have seen past the law, past their rules and inflexible break schedule to make a breastfeeding and mother friendly decision. In making a new bf feasible break schedule for her, they could have written up the past unauthorized breaks as a warning and not to happen again. Ie, give her a second chance. Because they did not do that, I have a low opinion of them. Their handling of this shows little respect for bf women. The fact that they had a legal right to fire her does not make it the overall right thing to do.

Just because someone works in a factory, without a private office and flextime does not mean their right to pump at work should be seen as any less important.

If Ms. Allen were more affluent, I doubt this ever would have gone this far and I doubt people would be so quick to assume that she did the wrong or less educated thing. It reeks of classism to me. My signature here says "It is never the wrong time to do the right thing" and that is my line on Totes. They could have handled this situation differently.

[woodensandals]

Why didn't Ms. Allen just work out a suitable break arrangement with her employer BEFORE taking those "unauthorized" breaks?

Because when you work for employers who do not value their employees the only way to get what you need is to just take it and hope no one notices. When you ask for something reasonable the answer is always NO.

I used to work at one of those jobs where they pay you peanuts and then micromanage you until you wish they'd fire you because you can't afford to quit. I am so thankful I work for an awesome company now and I have a great boss. It's like night and day. Our main building has a lactation room with Lactina pumps.

[KimberlyD0]

Originally Posted by woodensandals

Why didn't Ms. Allen just work out a suitable break arrangement with her employer BEFORE taking those "unauthorized" breaks?

Because when you work for employers who do not value their employees the only way to get what you need is to just take it and hope no one notices. When you ask for something reasonable the answer is always NO.

I used to work at one of those jobs where they pay you peanuts and then micromanage you until you wish they'd fire you because you can't afford to quit. I am so thankful I work for an awesome company now and I have a great boss. It's like night and day. Our main building has a lactation room with Lactina pumps.

So instead of asking and maybe getting what she needed, since we don't know she wouldn't, she just did it? Not good.

Besides if she had asked then been turned down, she would have a case.

By doing what she did.. no case, SHE was in the wrong.

[inkedmamajama]

thank you for sharing the links

[elanorh]

Her lawyer and some of the justices involved seemed to think that she had a case?

And, I don't think she thought to herself, "Hmmm, I'm going to create a precedent-setting case for breastfeeding, by pumping in this fashion." I think she altered her pumping schedule, didn't think it was a big deal, and when her supervisor told her she was FIRED when she was discovered, then talked to a lawyer about it since she felt she'd been discriminated against.

I'm reminded of rape cases. It shouldn't matter how a woman was dressed, or whether she knew the person, or whether she'd been on a date with him/her, or what she did for a living .... And yet those things impact whether her case is taken seriously as well. The question in the end isn't (and shouldn't be) "Was this the perfect case to prove our point?" The question is "Does this woman and her lawyer(s) believe that they have a case?"

[khaoskat]

Someone please tell me how much per hour she should be making to not be considered in a low income minimum wage job. Since you are all harping on the fact that she is "low income" or "minimum wage" and that is why she was treated this way?


Kijip - I agree, just because she is working in a factory setting does not mean they shouldn't try to make reasonable accomodations. But what a lot of us who are not siding with her on, is that when things didn't work out for her, she took things into her own hands and didn't even try to work it out with her employer. And for those of us who are not siding with her because of this, we do feel that she may have been justly terminated. The breaks may have been a last straw as to why she was let go - the company would not admit that she was a perfect employee and had no prior disciplinary actions.

And only one of the justices felt SHE had a case, and that was the dissenting opinion. Of the other justices, I believe two of them came down on the side that nursing is protected, and the other 4 said that to come down either way would be to give an advisory opinion and to do so would violate the Courts rules and/or Ohio laws/constitution. All in all right now we have 3 out of 7 Justices coming out and saying nursing is covered and the other 4 have said nothing either way. Although I am sure if I had the time to listen to oral args, I could make an educated guess as to the opinions of the other 4.

There are a lot of attorneys out there who will take a case regardless of the merits and file lawsuit. It is one of the reasons our Court system is so bogged down. Not all attorneys have the scruples to turn down a case if they feel it is not going to be a winner.

[phathui5]

Originally Posted by khaoskat

Unless things have changed..

An employer is required to give a 15 minute paid break for every 4 hours of work.

Any employer is required to give a 30 minute unpaid break for every 6 hours of work. (So, you would get 30 mins unpaid lunch and 15 min paid break).

If you worked 8 hours, you would get 2 15 minute paid breaks and 1 30 minute unpaid break.

If you worked 12 hours, you would get 3 15 minute paid breaks and 2 30 minute unpaid breaks.

If they don't give these to employees the employee can file a complaint with Wage and Labor and the employer would face some serious problems.

That may be how the law is set up, but I've found that in retail jobs, if you complain, they hire someone else on part-time and cut your hours down to almost nothing so that you'll not be making enough and quit.