Lactation intolerance: trivializing the struggles of working mothers & the need for a more diverse judiciary.

Author:Limbrick, Thomas H.
Position:NOTE
 
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Ames v. Nationwide Mutual Insurance Co., 760 F.3d 763 (8th Cir. 2014), cert, denied, 135 S. Ct. 947 (2015).

  1. INTRODUCTION

    In February 2015, numerous online sources published articles about a decision from the U.S. Court of Appeals for the Eighth Circuit denying a female employee's sex discrimination claim on the basis that "men can lactate, too." (1) These articles were doing what many see as the main purpose of digital journalism: attracting attention by way of clicks. (2) However, these articles misled their readers by making it sound as if the Eighth Circuit relied on that notion in its opinion.

    In reality, Ames v. Nationwide Mutual Insurance Co. involved an employee who sued her employer for sex discrimination based on her struggle to gain access to a lactation room upon her return from maternity leave. (3) The District Court for the Southern District of Iowa commented in a footnote about Ames's argument "that lactation is a medical condition related to her pregnancy" and, thus, deserving of protected class status. (4) The footnote stated:

    [T]he Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies.... Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production.... Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth. (5) The actual holdings of the district court and Eighth Circuit, while less ostentatious than the online attention-grabbing title "men can lactate, too," showcase reasoning that is just as troubling.

    Part II of this Note provides a brief background of the facts and the Eighth Circuit's ultimate holding in Ames. Part III discusses the legal history of Title VII and legislative efforts to prohibit discrimination in the workplace. Part IV examines the Eighth Circuit's reasoning. Finally, Part V comments on the supposed limited use of summary judgment in employment discrimination cases, the reasonableness of Ames's actions, the effect of stereotypes in employment discrimination, the role that the identity of the judiciary plays in discrimination cases, and how this case could have been prevented by appropriate human resource ("HR") management practices. The Eighth Circuit's decision in Ames showcases the struggles many mothers face in the workplace, and while these struggles start in the workplace, they can continue into the courtroom. This Note argues that the increased presence of female judges on the bench has played and will continue to play a positive role in the administration of justice.

  2. FACTS AND HOLDING

    Angela Ames sued her former employer, Nationwide Mutual Insurance Company, for sex and pregnancy discrimination under Title VII of the Civil Rights Act of 19646 and the Iowa Civil Rights Act ("ICRA") (7) after she was unable to pump breast milk at work the day she returned from giving birth to her second child. (8) The district court granted Nationwide's motion for summary judgment, and Ames appealed to the Eighth Circuit. (9)

    In October 2008, Angela Ames was hired at Nationwide as a loss-mitigation specialist. (10) She took eight weeks of maternity leave after giving birth to her first child in May 2009. (11) Ames discovered she was pregnant with her second child in October 2009. (12) Unfortunately, Ames suffered complications with her second pregnancy, and her doctor ordered bed rest in April 2010. (13) While discussing the doctor's orders, the head of Ames's department, Karla Neel, commented that "she never had to go on bed rest when she was pregnant and that she never had complications with her pregnancies." (14) Ames's immediate supervisor, Brian Brinks, also commented on her maternity leave by stating, "We're too busy for her to take off that much work." (15) Nationwide also trained a temporary employee as Ames's replacement during her maternity leave. (16) Ames's second child was born prematurely in May 2010, and shortly thereafter, Nationwide informed Ames that her maternity leave under the Family Medical Leave Act of 1993 ("FMLA") (17) would expire on August 2. (18) On June 16, Neel informed Ames that Nationwide had miscalculated, and that her FMLA leave would actually expire on July 12. (19) Neel said Ames could take additional unpaid leave until August 2, but cautioned that this would raise "red flags" and might cause "issues down the road." (20) Neel also offered to extend Ames's leave by one week. (21) Ames opted for the one-week extension. (22)

    Before returning to work, Ames informed a disability case manager at Nationwide that she would need to use a pump to express breast milk while at work, and the case manager told her that she would be able to use a lactation room. (23) Ames returned to work on July 19, 2010. (24) Her son was breastfeeding every three hours, and by the time she arrived at work, she needed to pump. (25) Ames asked Neel about using a lactation room. (26) However, "Neel replied that it was not her responsibility to provide Ames with a lactation room." (27) After asking the security desk about a lactation room, Ames was directed to the company nurse. (28) The nurse explained that Nationwide's lactation policy required paperwork and three days to process her badge access. (29) Despite information about the policy being available on Nationwide's intranet and at its quarterly maternity meetings, this was the first time Ames learned of the policy. (30)

    In order to accommodate Ames's need to pump immediately, the nurse asked security to grant her access "as soon as possible." (31) In the meantime, the nurse suggested using a wellness room as a temporary solution; however, the nurse warned Ames of possible contamination of her breast milk if exposed to germs. (32) Ames had to wait to use the wellness room because someone else was occupying it; while she waited, Ames discussed her work with her supervisor, Brinks. (33) Brinks told Ames that she would have two weeks to complete her work, which had not been completed during her maternity leave, or else she would face disciplinary action. (34) Again, Ames sought help from her department head in finding a room to pump, and, again, Neel refused to provide help. (35) Neel then handed a pen and piece of paper to Ames and said, "You know, I think it's best that you go home to be with your babies," and then told Ames how to write her resignation letter. (36)

    Ames alleged in her complaint that she was forced to resign because of "the unavailability of a lactation room, 'her urgent need to express milk,' and Nationwide's 'unrealistic and unreasonable expectations about her work production.'"37 Nationwide argued that there was no genuine dispute of material fact, and that Ames failed to show constructive discharge. (38) The district court agreed with Nationwide and granted its motion for summary judgment. (39) Among other things, the district court found that Neel's comment that Ames "go home to be with [her] babies" was not evidence of sex discrimination, but rather was "based on Ames's gender-neutral status as a new parent." (40)

    Ames appealed to the Eighth Circuit, which affirmed the district court's ruling. (41) The Eighth Circuit held that when a plaintiff acts unreasonably by failing to provide his or her employer with an opportunity to remedy a problem and quitting on the same day as the alleged unlawful employment practice, he or she has not demonstrated constructive discharge and the employer will not be liable under federal or state anti-discrimination law. (42)

  3. LEGAL BACKGROUND

    At common law, employment relationships were "at-will," and an employer could refuse to hire or discharge a person for any--or no--reason at all. (43) During the Reconstruction era, Congress passed statutes attempting to implement the Civil War Amendments: the Thirteenth, Fourteenth, and Fifteenth Amendments. (44) One such statute was the Civil Rights Act of 1866, which established that all citizens, regardless of color, were entitled to the same rights in every state, including the right to contract. (45) The Supreme Court of the United States, however, found that the protections of the Thirteenth and Fourteenth Amendments required a state actor and effectively nullified the statute. (46) By 1963, twenty-two states enacted statutes that barred racial discrimination in private employment. (47) These state statutes largely failed to include effective enforcement mechanisms, which laid the groundwork for a national policy change. (48)

    Title VII of the Civil Rights Act of 1964 was enacted to prevent employment discrimination nationally. (49) Specifically, Title VII prohibits covered entities, including employers, (50) from discriminating on the basis of five protected classifications: race, color, religion, national origin, and sex. (51) The term "employer" has a broad statutory definition: "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." (52) Section 703 makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment." (53) The Pregnancy Discrimination Act of 1978 amended Title VII's definition of sex-based discrimination to include decisions based on "pregnancy, childbirth, or related medical conditions." (54)

    Title VII cases fall into one of two categories: disparate treatment or disparate impact. (55) Disparate treatment is intentional discrimination against similarly situated persons because of a protected characteristic, while disparate impact involves facially neutral practices that have disproportionately negative effects on protected classes. (56) To evaluate claims alleging discrimination...

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