Lactating men, toilet stalls and the arc of justice

Lactating men, toilet stalls and the arc of justice

By Christian Schreiber3 month baby

For the vast majority of workers, the laws that protect their rights operate silently in the background. This is especially true in California, where labor laws are frequently hailed – or assailed – as the country’s most protective for workers.

It’s easy to forget that the standards we take for granted today were once uncharted frontiers, but sometimes a reminder is in order: the provision of new rights always meets resistance, but seldom do we regret the expansion.

A recent example makes the point. The U.S. Supreme Court denied a breastfeeding mother’s last chance at an appeal last month. The plaintiff in the case, Angela Ames, alleged that she was wrongfully terminated from her job at an Iowa insurance company after returning to work from pregnancy leave. Ames requested a room where she could express breast milk, and was instead told by her boss to “go home and be with your babies.” The district court tossed the case on summary judgment, noting that her sex discrimination claims could not stand because “lactation is not a physiological condition experienced exclusively by women.” The 8th Circuit upheld the decision.

If you’re thinking this sounds like an article in the Onion, you’re not alone. Legal opinions relying on “Strange But True” articles make me think that my trivia-minded children have a too-near-term future on the bench. And I can’t be alone in being reminded of this:

Unfortunately, Ames and other women trying to breastfeed remain unprotected in many settings, and experience resistance in even unlikely places. Last fall, my sister-in-law was prepared to sit for her board exams in for Pulmonary and Critical Care Medicine. When she asked the American Board of Internal Medicine for accommodation to express milk during the 10-hour testing day, she was told to spend her break time pumping. Because as every lactating man knows, pumping is the same thing as studying, resting, eating, smoking, or taking a break.

In California, breastfeeding rights are well established. But because she lives in Indiana (where she is currently completing her fellowship), she enlisted help from me and the ACLU’s Women’s Rights Project. We wrote a letter explaining the shortsightedness of ABIM’s position. The good news is ABIM accommodated her request, and subsequently changed its policy. Ms. Ames was not so lucky.

California working mothers can now rely on Labor Code section 1030, which since 2003 has required employers to provide unpaid time and non-bathroom space for employees to express breast milk. When the bill mandating these changes was debated, however, the Chamber of Commerce predictably opposed the bill.

The Chamber’s position evolved over the next decade. Last year it did not oppose AB 1787, which would have required large commercial airports to provide places for nursing mothers. But the Chamber is nothing if not consistent. Instead of recognizing that today’s vanguard is tomorrow’s baseline, the Chamber still reflexively opposes any “new rights” in the workplace, typically tagging such efforts as “job killers.”

It is time our elected officials stop crediting the tired perspective of holdouts quivering at the edge of a civil rights moment. Time has a way of showing that the Chamber’s unbroken chorus of “impending doom” and “runaway rights” holds neither moral nor economic sway. And it never stands the test of time. A dozen years later, what California employer is clamoring to end the tyranny of nursing mothers being released from the confines of a toilet stall?

The Chamber’s economic perspective is just as faulty.. Consider the following two slides:

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If the Chamber’s perspective were valid, the laws enacted to protect workers in San Francisco should have crushed the City’s economic vitality. Plainly,they didn’t..

The Legislature is poised to consider any number of bills this session that will expand the rights of workers, including a renewed effort to guarantee equal pay for working women.  When the Chamber begins its craven “job killer” refrain, as it will both publicly and privately in the days ahead, it should be met with  skepticism. California legislators need not shy away from the reality that civil rights legislation has demonstrated a distinct, eastward migratory pattern.

If the arc of the moral universe is long and bends towards justice, short-term plans that offer only the promise of continued inequity should be met with a new chorus. “See me in 10 years if you’re still interested in reversing these rights. Otherwise, I hear they’re hiring in Iowa.”

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Devastating consequences to working moms and infants when employers violate the law

Devastating consequences to working moms and infants when employers violate the law

By Sarah Schlehr

California law has the back of new and expectant mothers who need workplace accommodations during pregnancy or time and space to breastfeed after giving birth.  By following the laws, employers protect the moms-to-be and babies. Unfortunately, when employers disregard their legal obligations, the consequences for women and their babies can be huge – premature delivery, back injuries, undernourished babies, even stress-related miscarriage.

A recent article in the Huffington Post exemplifies the suffering one employee experienced when Albertson’s failed to accommodate her most basic requests for accommodations: she delivered prematurely and her newborn died.  In a recent blog post detailing this tragic case, the public interest law firm, Public Justice, calls for action at the federal level to extend the types of protections available under California law across the nation.  Blogger and Public Justice staff attorney Claire Prestel touts the recommendations of an important recent report by the National Women’s Law Center and A Better Balance

So here’s a newsflash that shouldn’t be news to anyone: More and more pregnant women are working, working closer to their due dates, and providing essential income and benefits for their families. This means that if we are going to get serious about restoring the middle class, part of our effort must go to protecting these women so they can support their families. The NWLC/ABB report outlines concrete steps that can and should be taken right now, including guidance the EEOC can issue without presidential or congressional action.

Another recent blog post from Public Justice senior attorney Victoria Ni, The Facts of Life, describes the long struggle women have experienced to secure their right to breastfeed their babies while supporting their families by working.  In California, the law was amended this year to ensure that discrimination based on sex specifically included breastfeeding.  Despite this, many women continue to experience difficulties trying to pump breast milk during work hours.  Unfortunately, even a day or two of interrupted pumping can have significant and ongoing effects on a mother’s ability to breastfeed their newborn.  While certainly not as extreme as the death of a newborn, the inability to supply one’s child with breast milk can have serious long-term effects on the health of one’s baby.

Often the accommodations female employees need are as simple and obvious as not requiring a pregnant woman to lift heavy items or to allow a woman with gestational diabetes the ability to eat regular snacks during work so her blood sugar can remain stable.  For women who wish to breastfeed, the accommodation is usually as straightforward as providing them with a private space (not a bathroom stall) and time to pump breast milk.

In view of how long and hard employees had to fight to establish these reasonable and simple laws, it should perhaps not come as a surprise that employers continue to fight long and hard to resist following them.  But resistance to change does not justify the serious consequences to women and the long-term harms suffered by infants, all of which can be prevented in California through enforcement of the legal protections.

Sarah Schlehr

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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