Astonishing but true, taxpayer dollars have been wasted debating whether or not lactation is a medical condition related to pregnancy. The courts actually debated the matter, and not for the first time, in EEOC v. Houston Funding II, Ltd. Thankfully, the Equal Employment Opportunity Commission (EEOC) recently chimed in, providing a review of biology 101 and clarifying that lactation is indeed a condition that is related to pregnancy. The clarification was part of the EEOC’s long-awaited Enforcement Guidance on Pregnancy Discrimination and Related Issues. After 30 years of silence, the EEOC issued their latest guidance on July 14, 2014, noting that the problem of pregnancy discrimination continues to harm U.S. employees and suggesting that employers take a closer look at their practices. The EEOC guidance makes it clear that lactating employees may be entitled to accommodation under both the Pregnancy Discrimination Act and the Americans with Disabilities Act, which also provides certain protections to pregnant employees.
Of course, federal law and many state laws already protect breastfeeding employees. Effective March 23, 2010, the Federal Patient Protection and Affordable Care Act requires employers to provide their employed nursing mothers with (1) a private place to express their breastmilk that is not a bathroom; and (2) a reasonable amount of uncompensated time to express milk. An employee’s right to such accommodations extends through the nursing child’s first birthday. The recent EEOC guidance is simply the icing on the cake.
While the EEOC guidance lacks the force of law, employers should take note because it significantly influences both court rulings and the policies of state fair employment practices agencies. The latest EEOC guidance is crystal clear: lactation is a condition related to pregnancy. Therefore, an employer may not discriminate against an employee because she needs to express her milk. Pumping, working mamas not only have the right to express their milk at the workplace during the work day, but they have the backing of the EEOC against discrimination for doing so. According to the EEOC, lactating employees are protected under both the Pregnancy Discrimination Act and the Americans with Disabilities Act.
The EEOC created a list of best practices that employers should consider using. These include:
- Reviewing policies relating to anti-discrimination, benefits, and accommodations for nursing employees to ensure that they are compliant with the law.
- Training managers and human resources professionals on the rights and responsibilities under the PDA, the ADA, and other statutes that bear on pregnancy, and specifically on the duty to accommodate restrictions related to pregnancy, childbirth, or lactation.
- Taking pregnancy (and therefore lactation) discrimination complaints very seriously, investigating complaints promptly, and protecting employees who complain from retaliation.
- Making the employee’s qualifications the focus of employment-related decisions rather than the employee’s pregnancy (or lactating) status, children, or plans to start a family.
- Making sure the business reasons for employment actions are well documented.
- Having a process in place for expeditiously considering reasonable accommodation requests.
At Ybreast, we believe that all working mothers have the right to breastfeed their babies without compromising their careers. And luckily, more and more government policies are now backing this right. For more information on what Ybreast can do for your company, check out Ybreast @ Work or contact us at 1-855-My-Milky to set up a complimentary consultation and review of your corporate policy.