Gender-Based Discrimination in the Workplace

• Author: Ashley M. Alteri
• Published date: 01 September 2016
• Date: 01 September 2016
• DOI: http://doi.org/10.1177/0734371X15587979
• Subject Matter: Articles

Review of Public Personnel Administration

2016, Vol. 36(3) 264 –282

© The Author(s) 2015

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DOI: 10.1177/0734371X15587979

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Article

Gender-Based Discrimination

in the Workplace: Why

Courts Tell Employers That

Breastfeeding Discrimination

Is Legal

Ashley M. Alteri1

Abstract

In March 2010, the Patient Protection and Affordable Care Act and the Health Care

and Education Reconciliation Act were signed into law. These Acts include a provision

governing “reasonable break time for nursing mothers” for those employers and

employees covered under the Fair Labor Standards Act. However, neither these

Acts, nor the Pregnancy Discrimination Act, nor Title VII, nor the Americans with

Disabilities Act expressly protect women from discrimination resulting from her

choice to lactate at work (to include either feeding a child directly from the breast or

by expressing milk to be used at a later time). Accordingly, this article examines how

federal courts have treated claims of breastfeeding discrimination at work. Although

courts have generally been unsympathetic to these claims, employers should consider

proactive accommodation measures because recent cases indicate that courts may

be willing to entertain these claims.

Keywords

affirmative action and equal employment opportunity, gender and public personnel

administration, family friendly workplace, discrimination, health issues and personnel

Introduction

In their Healthy People 2010 report, the Department of Health and Human Services

(HSS) stated that one of its national objectives was to substantially increase the rate of

children who are breastfed by 2010 (U.S. HSS, 2000). The American Academy of

1University at Albany, State University of New York, NY, USA

Corresponding Author:

Ashley M. Alteri, Department of Public Administration and Policy, University at Albany, State University

of New York, 1400 Washington Avenue, Albany, NY 12222, USA.

Email: adavis-alteri@albany.edu

587979ROPXXX10.1177/0734371X15587979Review of Public Personnel AdministrationAlteri

research-article2015

Alteri 265

Pediatrics recommends that children be breastfed exclusively until they are 6 months

old and for children to continue to receive breast milk until age 1 (Gartner et al., 2005,

pp. 465-506). Breastfeeding is encouraged by physicians, the Centers for Disease

Control and Prevention (CDC), and the government because it provides substantial

health benefits to both the child and the mother (National Conference of State

Legislatures [NCSL], 2010). Children who are breastfed exclusively “tend to need

fewer health care visits, prescriptions and hospitalizations resulting in a lower total

medical care cost compared to never-breastfed infants” (NCSL, 2010). Finally, a

recent study found that “[i]f 90% of US families could comply with the medical rec-

ommendations to breastfeed exclusively for 6 months, the United States could save

$13 billion/year and prevent an excess 911 deaths annually, 95% of which would be of

infants” (Bartick & Reinhold, 2010, p. e1052).

Despite this encouragement, according to the CDC, for children born in 2010, although

76.5% began to breastfeed, only 49.0% were breastfed at 6 months of age and 27.0% at

1 year of age (CDC, 2013). The CDC has continued to find that there are disparities in

breastfeeding rates based on a family’s socioeconomic status, and children born into

lower income families and those born to non-Hispanic Black women, as compared with

non-Hispanic Whites, have lower rates of breastfeeding (CDC, 2015; CDC, 2010). The

CDC hypothesizes that this difference is due to a number of factors, one of which being

that non-Hispanic Black women return to work sooner than their White counterparts, and

there is insufficient support for breastfeeding in these workplaces (CDC, 2010; citing

Ludington-Hoe, McDonald, & Satyshur, 2002). A study of Maryland Special

Supplemental Nutrition Program for Women, Infants, and Children (WIC) participants

found that one of the most frequent reasons these women report ceasing to breastfeed is

“having to return to work” (Hurley, Black, Papas, & Quigg, 2008).

For women who wish to lactate at work, adding a legal structure that ensures they

are protected against breastfeeding discrimination will remove a substantial barrier in

the workplace. As of June 2014, 18 states, the District of Columbia, and Puerto Rico

required employers to provide space and time for mothers wishing to lactate (NCSL,

2014; U.S. Department of Labor [U.S. DOL], 2014) (Table 1). Although in those states

women who choose to lactate may be able to require that companies comply with the

procedural guarantees of these statutes, this does not ensure that they are protected

from discrimination that may result from their choice to lactate in the workplace.

This article examines how federal courts have treated claims of breastfeeding dis-

crimination at work. To do so, the article first situates the breastfeeding discrimination

within the literature on barriers to women in the workplace. Second, it reviews com-

mon situations in which breastfeeding discrimination occurs in the workplace. Third,

it reviews U.S. federal court decisions in which the plaintiff(s) filed claims alleging

that they had been discriminated against for requesting to or attempting to lactate at

work, prior to September 1, 2013. Because the U.S. Supreme Court has not ruled on

this issue specifically, the article analyzes language contained within the decisions,

both the courts’ holdings and dicta, for patterns regarding both how the court has

treated and may treat claims of discrimination made under the following laws: the

Pregnancy Discrimination Act (PDA), Title VII of the Civil Rights Act, the Americans