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Breastfeeding Rights Update

Posted by Giovanna A. D'Orazio | Sep 12, 2017

We have previously written about a woman's rights to take breaks to express breast milk in the workplace, as well as whether “breastfeeding discrimination” might be protected under Title VII as amended by the Pregnancy Discrimination Act (“PDA”).  At that time, there was no precedent in the Second Circuit – the federal court of appeals covering New York – that breastfeeding is covered by the PDA, which applies to women affected by pregnancy or pregnancy-related medical conditions. 

While there is still no such case from the Second Circuit, the 11th Circuit just joined the 5th Circuit in holding that breastfeeding is a protected medical condition under the PDA.  (The 5th Circuit decision in EEOC v. Houston Funding, can be found here.

This is a big win for women's workplace rights

The Court also held that, while an employer does not have to give a “special” accommodation for breastfeeding, it must provide accommodations on an equal basis to other employees – meaning, it must treat breastfeeding workers the same as other employers similar in their ability or inability to work.  This is basically a reiteration of the standard in the famous UPS Supreme Court case which applied this standard to women who need pregnancy-related accommodations like lifting restrictions.  (Read more on the UPS case.)  But the 11th Circuit decision is significant because it applies this standard to breastfeeding mothers, not only pregnant women.

 The 11th Circuit case, Hicks v. Tuscaloosa, involved a police officer who asked for alternative duty because breastfeeding and the necessity for breaks made it difficult for her to be on patrol duty and wear a restrictive vest.  The Court found that this was not a request for a “special” accommodation because it was really no different than accommodations other workers similar in their inability to work would request.

Unlike the PDA, New York law does explicitly require reasonable accommodations for pregnancy related conditions without requiring an analysis of how other workers are restricted and treated.  While breastfeeding is not explicitly included in the definition of a pregnancy related condition, New York law tends to be interpreted as being more protective than federal law and, in light of the analysis in the 5th and 11th Circuit decisions, there is a strong argument to be made.  New York also requires employers to give breaks to breastfeeding mothers to express breastmilk in a private area of the workplace.  While federal law also includes some protections for breastfeeding mothers as part of the Fair Labor Standards Act (as amended by the Affordable Care Act), protections do not apply to all employees or employers.

 If you believe you have been denied a reasonable accommodation for a pregnancy related condition or because you are a breastfeeding mother, or that you have been discriminated against for being pregnant or breastfeeding, it is important to contact an experienced employment attorney as soon as possible given strict time deadlines.  Particularly in New York, where there is no Second Circuit decision on this issue, it is important to hire an attorney who is familiar with the state of the law on these important issues.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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