Problem NIP at Barnes & Noble Albany, NY - Page 2

[mamajake]

Originally Posted by Sustainer

I would be interested in seeing a Supreme Court decision that says so, that didn't later get nullified.

No case would get to the Supreme Court. There is no legal basis for protection against discrimination unless one falls into a specifically protected class. Blue eyes isn't a protected class. There are very few protected classes.

[Swan3]

Originally Posted by mamajake

No case would get to the Supreme Court. There is no legal basis for protection against discrimination unless one falls into a specifically protected class. Blue eyes isn't a protected class. There are very few protected classes.

Being Canadian I'm not familiar with the ins and outs of American law...but to me this seems to be a case of discrimination. Under our Charter of Rights and Freedoms, it is discrimination based on gender because only women are able to breastfeed. Would there not be a similar umbrella protection under American law?

[Sustainer]

Originally Posted by mamajake

No case would get to the Supreme Court.

If there hasn't been a Supreme Court decision declaring that store owners have the right to remove people for reasons such as the color of their eyes or the sound of their last name, then by default people have the right to have access to places of public accommodation without being harassed by the proprietor simply for being blue eyed or simply for being a mother who takes proper care of her children.

Swan3, yes, since breastfeeding is something women do, then breastfeeding discrimination definitely qualifies as sex discrimination.

[mamajake]

Originally Posted by Swan3

Being Canadian I'm not familiar with the ins and outs of American law...but to me this seems to be a case of discrimination. Under our Charter of Rights and Freedoms, it is discrimination based on gender because only women are able to breastfeed. Would there not be a similar umbrella protection under American law?

Whether breastfeeding discrimination is sex discrimination is still an open question under U.S. law. Currently federal case law holds that breastfeeding discrimination is *not* sex discrimination. However, more importantly, one must remember that sex discrimination in public accommodations is *not* prohibited by federal law. Some states prohibit sex discrimination in public accommodations under state law but it is *not* prohibited by federal law in the U.S.

[mamajake]

Originally Posted by Sustainer

If there hasn't been a Supreme Court decision declaring that store owners have the right to remove people for reasons such as the color of their eyes or the sound of their last name, then by default people have the right to have access to places of public accommodation without being harassed by the proprietor simply for being blue eyed or simply for being a mother who takes proper care of her children.

Swan3, yes, since breastfeeding is something women do, then breastfeeding discrimination definitely qualifies as sex discrimination.

No @Sustainer, this is not the way U.S. law works.

[Asiago]

I am memorizing the NJ law as we speak

The following link states laws:

http://www.ncsl.org/default.aspx?tabid=14389

[mamajake]

Originally Posted by Asiago

I am memorizing the NJ law as we speak

The following link states laws:

http://www.ncsl.org/default.aspx?tabid=14389

NJ has a good one.

This http://www.mothering.com/sites/resources/laws.pdf is a better source for what the laws actually do, if I say so myself. The NCSL site is not as exact in its characterization and the links often go only to the state legislative home page.

[Sustainer]

Originally Posted by mamajake

No @Sustainer, this is not the way U.S. law works.

It's a common misconception that the only legal rights people have are those that have specifically been given to them by the government. The fact is that legal rights exist by default until they are made illegal by the government. By default, I have a right to breathe. There is no law saying I do. The 9th and 10th Amendments clarify this legal principle:

9 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[mamajake]

Originally Posted by Sustainer

It's a common misconception that the only legal rights people have are those that have specifically been given to them by the government. The fact is that legal rights exist by default until they are made illegal by the government. By default, I have a right to breathe. There is no law saying I do. The 9th and 10th Amendments clarify this legal principle:

9 The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Law school cured me of "common misconceptions."

In the absence of other law, you have the "right" to breathe. And in the absence of other law, other people have the "right" to deprive you of the oxygen all around you. In the absence of other law, others may blow smoke in your face and park their cars wherever you are enveloping you with car exhaust. What then happens to your "right" to breathe if you are effectively deprived of your *ability* to breathe?

Federal courts, interpreting federal law, have held that breastfeeding discrimination is *not* sex discrimination in the employment context - in which there is explicit federal protection against sex discrimination in the Civil Rights Act of 1964. Following those decisions (with which I disagree) a federal court (Ohio) has held that in states in which sex discrimination in public accommodations *is* prohibited, breastfeeding discrimination is *not* sex discrimination.

Citing to a plain reading of the Constitution at this point on this issue does not get you more than a theoretical right to breastfeed. As long as others have a legal right to deprive you of the ability to breastfeed in public, it is not helpful to maintain you have a legal right to breastfeed in public. Saying it will not make it so.

[Sustainer]

Originally Posted by mamajake

In the absence of other law, you have the "right" to breathe. And in the absence of other law, other people have the "right" to deprive you of the oxygen all around you. In the absence of other law, others may blow smoke in your face

Actually, people do not have the right to deprive people of the oxygen all around them. This is what you've been taught in law school? Do you think that if I sucked all the oxygen out of the room you were in and you died of asphyxiation, I wouldn't be arrested? People do not have the right to blow smoke in my face. Depriving me of the oxygen all around me or blowing smoke in my face would violate my rights.

Citing to a plain reading of the Constitution at this point on this issue does not get you more than a theoretical right to breastfeed.

The Constitution is not theoretical. It is the Supreme Law of the Land.

As long as others have a legal right to deprive you of the ability to breastfeed in public

They don't.


Most states have now enacted legislation acknowledging the right to breastfeed. If store owners' rights superceded the mother's rights, a store owner could challenge the law in court and it would be overturned. That is not what the outcome of such a case would be. The legal truth is that, by default, the mother's right supercedes the store owner's right.

[WingonWing]

Originally Posted by Sustainer

If there hasn't been a Supreme Court decision declaring that store owners have the right to remove people for reasons such as the color of their eyes or the sound of their last name, then by default people have the right to have access to places of public accommodation without being harassed by the proprietor simply for being blue eyed or simply for being a mother who takes proper care of her children.

Swan3, yes, since breastfeeding is something women do, then breastfeeding discrimination definitely qualifies as sex discrimination.

Wait, what? "Colored" people didn't have the right to use "white" water fountains by default, you know.

Your statement makes no sense. You don't have a right to do something just because there hasn't been a Supreme Court decision telling you you can't.

[Sharlla]

Originally Posted by VroomieMama

While we're on this topic. I went to babies r us just few weeks ago and I saw a room for mothers to nurse in but I was wondering to myself "but what if I want to nurse while shopping/browsing, will I be asked to use that room?" I mean, I know I'll get so bored sitting in that nursing room breastfeeding and I'd rather to be browsing while keeping myself busy.

I live in Virginia and I wonder about the breastfeeding in public places laws in VA. Edited to add: I just looked up and I am happy with VA's breastfeeding laws.

For others benefit: (updated March 2010) http://www.ncsl.org/default.aspx?tabid=14389#v

idk baby is getting to the age where shes easily distracted, so im glad that some stores hve the option of a quiet comfy place to nurse. although i frequently nurse in the carrier
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[mamajake]

This is getting way off topic. I am not only a lawyer but an expert in this area. You are convinced of what you know. I see no point in arguing with you.

Originally Posted by Sustainer

Actually, people do not have the right to deprive people of the oxygen all around them. This is what you've been taught in law school? Do you think that if I sucked all the oxygen out of the room you were in and you died of asphyxiation, I wouldn't be arrested? People do not have the right to blow smoke in my face. Depriving me of the oxygen all around me or blowing smoke in my face would violate my rights.


The Constitution is not theoretical. It is the Supreme Law of the Land.


They don't.


Most states have now enacted legislation acknowledging the right to breastfeed. If store owners' rights superceded the mother's rights, a store owner could challenge the law in court and it would be overturned. That is not what the outcome of such a case would be. The legal truth is that, by default, the mother's right supercedes the store owner's right.

[Asiago]

Originally Posted by mamajake

NJ has a good one.

This http://www.mothering.com/sites/resources/laws.pdf is a better source for what the laws actually do, if I say so myself. The NCSL site is not as exact in its characterization and the links often go only to the state legislative home page.

Thank you mamajake!

[Sustainer]

Originally Posted by WingonWing

Wait, what? "Colored" people didn't have the right to use "white" water fountains by default, you know.

By default? Yes they certainly did. Their legal right was only taken away when a law was passed stating that they could not use white fountains.

I am not only a lawyer but an expert in this area.

Even different lawyers disagree over their interpretations in this area. Heck, even Supreme Court Justices disagree on some of the principles you and I have been arguing. I just want to say that I am a strong advocate of a new national law to clarify that mothers have the right to breastfeed everywhere that they would otherwise be allowed to be, regardless of how much breast/nipple shows and regardless of the age of the child. I just don't want mothers to think that, in the absence of a law stating as much, they don't have that right. It is highly unlikely that they would be arrested in any case, and even if they were, I am certain they would triumph in court, because in my opinion, the law is already on their side.

[FillingMyQuiver]

mamajake~ the ncsl.org link that someone linked to earlier, states


"Va. Code § 2.2-1147.1 (2002) guarantees a woman the right to breastfeed her child on any property owned, leased or controlled by the state. The bill also stipulates that childbirth and related medical conditions specified in the Virginia Human Rights Act include activities of lactation, including breastfeeding and expression of milk by a mother for her child. (HB 1264)"

I'm wondering if you could clarify the bolded part for me. I went here:
http://chr.vipnet.org/act.html and read the short policy. Section B states:

"B. It is the policy of the Commonwealth to:

1. Safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation, including educational institutions and in real estate transactions; in employment; preserve the public safety, health and general welfare; and further the interests, rights and privileges of individuals within the Commonwealth; and "

So is a store or restaurant considered a "place of public accommodation"? I live in VA and like to arm myself as much as possible for when I NIP. I've never had anyone question me or confront me, but knowing my rights is always a good thing.

[mamajake]

Very good question. I don't know why NCSL put that comment there since it is confusing/misleading. The bill (see the italicized sections here http://leg1.state.va.us/cgi-bin/legp...1+ful+HB1264ER ) clarifies that lactation discrimination is pregnancy discrimination but only in the employment context. It makes no reference to altering the law regarding public accommodations.

However you are correct that pregnancy discrimination is prohibited under Virgina state law in public accommodations. Unless there is some case law in Virginia to the contrary (and I don't practice in Virginia), I would definitely argue that if the legislature intended to clarify that breastfeeding discrimination is pregnancy discrimination in employment, it must have meant that clarification to apply to public accommodations as well.

Footnote here: the U.S. Supreme Court held that pregnancy discrimination is *not* sex discrimination in a moronic opinion that was legislatively overruled in 1978 by Congress in passing the Pregnancy Discrimination Act. There have subsequently been equally moronic (IMHO) opinions holding that breastfeeding/lactation discrimination is *not* pregnancy discrimination because breastfeeding/lactation is not a condition related to birth.

And, yes, stores and restaurants are public accommodations. Public accommodations are private property open to the public. Each state defines it slightly different excluding and including some places but generally that is the principle.

Hope that helps and good catch! Were I discriminated against for breastfeeding in a public accommodation in Virginia, I would file a pregnancy discrimination claim.

Originally Posted by FillingMyQuiver

mamajake~ the ncsl.org link that someone linked to earlier, states


"Va. Code § 2.2-1147.1 (2002) guarantees a woman the right to breastfeed her child on any property owned, leased or controlled by the state. The bill also stipulates that childbirth and related medical conditions specified in the Virginia Human Rights Act include activities of lactation, including breastfeeding and expression of milk by a mother for her child. (HB 1264)"

I'm wondering if you could clarify the bolded part for me. I went here:
http://chr.vipnet.org/act.html and read the short policy. Section B states:

"B. It is the policy of the Commonwealth to:

1. Safeguard all individuals within the Commonwealth from unlawful discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability, in places of public accommodation, including educational institutions and in real estate transactions; in employment; preserve the public safety, health and general welfare; and further the interests, rights and privileges of individuals within the Commonwealth; and "

So is a store or restaurant considered a "place of public accommodation"? I live in VA and like to arm myself as much as possible for when I NIP. I've never had anyone question me or confront me, but knowing my rights is always a good thing.

[FillingMyQuiver]

Originally Posted by mamajake

Very good question. I don't know why NCSL put that comment there since it is confusing/misleading. The bill (see the italicized sections here http://leg1.state.va.us/cgi-bin/legp...1+ful+HB1264ER ) clarifies that lactation discrimination is pregnancy discrimination but only in the employment context. It makes no reference to altering the law regarding public accommodations.

This is interesting b/c if you go to the Human Rights Council page I linked to, there's this page: http://leg1.state.va.us/cgi-bin/legp...0+cod+2.2-3901

"§ 2.2-3901. Unlawful discriminatory practice and gender discrimination defined.

Conduct that violates any Virginia or federal statute or regulation governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability shall be an "unlawful discriminatory practice" for the purposes of this chapter.

The terms "because of sex or gender" or "on the basis of sex or gender" or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all purposes as persons not so affected but similar in their abilities or disabilities. "

and it doesn't mention employment. So I'm wondering if breastfeeding IS covered under the VAHRA. I'm not a lawyer, nor do I pretend to know the law, I'm just working things out in my head.

[mamajake]

You're doing a great job. The second paragraph of the section you cite is the state equivalent of the federal Pregnancy Discrimination Act of 1978. And, no, it doesn't mention breastfeeding but I think it is huge "duh!" because lactation is clearly a condition related to childbirth. However, federal case law held that breastfeeding/lactation is *not* related to childbirth (!!??). So since the Virginia legislature has clarified that breastfeeding discrimination is pregnancy discrimination with regard to employment in the section we discussed earlier, the same should be true with regard to public accommodations. The same term should have the same meaning. It isn't a slam dunk but I would make the argument.

Originally Posted by FillingMyQuiver

This is interesting b/c if you go to the Human Rights Council page I linked to, there's this page: http://leg1.state.va.us/cgi-bin/legp...0+cod+2.2-3901

"§ 2.2-3901. Unlawful discriminatory practice and gender discrimination defined.

Conduct that violates any Virginia or federal statute or regulation governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability shall be an "unlawful discriminatory practice" for the purposes of this chapter.

The terms "because of sex or gender" or "on the basis of sex or gender" or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of pregnancy, childbirth or related medical conditions. Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all purposes as persons not so affected but similar in their abilities or disabilities. "

and it doesn't mention employment. So I'm wondering if breastfeeding IS covered under the VAHRA. I'm not a lawyer, nor do I pretend to know the law, I'm just working things out in my head.

[mrsjtc]

I'm from the Saratoga Springs area and would be interested in any updates as well.

Great response OP! Hope the complaints are going working.