Recently, a federal judge held that it was not discrimination for an employer to fire a woman because she wanted to pump breast-milk while at work. In Equal Employment Opportunity Commission v. Houston Funding II, Ltd., et al, the plaintiff alleged that she was fired because she wanted to pump breast- milk when she returned to work two months after the birth of her child. Her employer claimed that she was fired for abandoning her job. Although, the court recognized that discrimination because of pregnancy, childbirth, or a related medical condition (including cramping, dizziness and nausea while pregnant) is illegal, Judge Lynn Hughes found that even if the company’s claim that she was fired for abandonment was meant to hid the real reason – she wanted to pump breast-milk – lactation is not pregnancy, childbirth or a related medical condition. The court explicitly stated that firing someone because of lactation or “breast-pumping” is not sex discrimination.

Although, federal law still does not specifically protect women from being fired if they ask to pump breast milk at work, the Fair Labor Standard Act (the “FLSA”) was recently amended to provide employees some protections if they wish to pump while at work. However, the Patient Protection and Affordable Care Act which was passed as an amendment to the FLSA, applies only to employees who are covered by the FLSA.
The new law, called Break Time for Nursing Mothers, requires companies with at least 50 employees to provide women with reasonable time and a private space—not a bathroom—to pump milk until their baby is a year old. The law does not spell out how much time is reasonable, nor whether that private space should include, for example, a lock on the door or a refrigerator to store milk. Employers are not required to compensate employees for pump breaks unless they offer unpaid breaks for other reasons, such as lunch. In addition to protection by federal law, employees may have protection under state law. Twenty-four states, the District of Columbia and Puerto Rico have laws related to breastfeeding in the workplace. (Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, Mississippi, Montana, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming.)

Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.