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Woman fired for pumping at work

Categories: breastfeeding

15 comments

Last week my better half sent me an email titled “Boycott Isotoner?” with a link to this article, about one company’s legal troubles following its firing of a female employee who was pumping breastmilk while on the clock. The case went all the way to Ohio’s Supreme Court, which ultimately ruled that the firing was legal because—woman or not, breastfeeding mother or not—this mother-employee had taken unauthorized breaks to pump during her shift and was therefore in violation of company policy. As a breastfeeding and working mother myself, my hackles were of course immediately raised, but then, when I read that the woman admitted to taking unapproved breaks to pump, I almost slapped my forehead and yelled “duh” at the computer screen, because this—this—is the sort of thing that gives working mothers a bad name and makes it hard for us to parent in the ways we want to, whether that involves breastfeeding while working or even going back to work after having children at all. No wonder we’re accused of seeking special treatment! But then I read on.Apparently, the trial court said that lactation was not covered under pregnancy-related anti-discrimination laws because “[LaNisa] Allen gave birth over five months prior to her termination [...and] pregnant [women] who give birth and choose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination.”

Hu-what?

I’m not even going to touch the ways in which that decision not only discourages working women from breastfeeding at all but also opens the door to revoking what protections pregnant employees already have under the law. (If breastfeeding is a choice, and a company can apparently fire a women for her decision to breastfeed, how long until someone argues that getting pregnant is, generally speaking, a choice as well, and therefore companies should have the legal right to fire an employee for her decision to get pregnant? My hackles are sky-high.)

I understand why the decision in Allen v. totes/Isotoner Corp. went the way it did—the defending lawyers made the case about Allen’s unscheduled breaks, not about what she was doing on those breaks, i.e., pumping milk for her infant—but even though her termination may have been justified or legal doesn’t mean it was right. The Salon.com article linked above explains why the firing was unquestionably gender discrimination and why, moreso, the woman should have been protected under the state’s pregnancy-related anti-discrimination laws. Other articles on the case speculate that the decision may eventually be overturned.

When I started this article, I planned to end with the question “Would you ever boycott a company based on their treatment of working mothers?” but now that I’m here at the end I’m more interested to just hear what other working mothers think of this case. Where do you stand on this case and/or the larger issue(s), and what implications do you think this has for the future?



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15 comments so far...

  • I don’t have time to read the case, but from what I have read (here and elsewhere), it sounds like this was a clear case of unauthorized breaks. So she was pumping her breasts at those times - what if she were eating, or taking a shower, or sleeping, or having a phone conference with her kid’s teacher, or doing something else that is essential for both genders to do on a regular basis? When you take a job, you are promising to work during certain hours. If you need an exception for any reason, you apply for it. You figure out how to fit your personal needs, and those of your kids, around your work schedule. If you have no intention of doing so, you are breaching your side of the bargain, and you deserve to be fired. In fact, you ought to also be fined for collecting salary for times when you weren’t working.

    If we make this about the fact that nearly everyone who lactates is female, we simply create an opportunity for women to cheat their employers and their fellow workers. Which only increases the negativity toward women / mothers in the work force.

    Some women decide to carry their babies in a sling all day long. Should their employers be allowed to fire them if they persist in wearing their babies on the assembly line? After all, they wouldn’t be baby-wearing if they hadn’t been pregnant in the recent past, so obviously that’s discrimination! Come on. And how about my case, as an adoptive mom - I could have breastfed my kids if I’d undergone an extensive lactation regime, but it would have involved a lot of time that I normally spent working. Should I have just done it anyway, turned in less work, and then sued my employer if they didn’t like it? No, that would diverge too much from our mutual bargain, and I’d feel like a fraud - which apparently doesn’t bother some women.

    I don’t know much about laws that single out pregnant women for extra protection. But I’d say we’re lucky enough to have them. There’s a limit to everything. This woman was clearly pushing the limit.

    SKL  |  September 9th, 2009 at 6:14 pm

  • I read this story somewhere else, and from what I understand, the woman asked for her break to moved to an earlier time so that she could pump (and not be engorged, and leaky I would assume). The company refused her request and so she took unauthorized breaks. The argument made was that employees who need to pee don’t have to wait til break to go to the bathroom. If they did, it could cause extreme discomfort and possible illness (like U.T.I) Breastfeeding is equivalent in that not pumping regularly can cause extreme discomfort (engorgement is horrendously painful) and illness (contributes to the risk of getting Mastitis). I fully understand this reasoning, in this case. But I also agree with SKL’s sentiment that a line has to be drawn somewhere. I was not able to directly breastfeed my 1st born, and quit pumping after 7 wks. But my work at the time had built “lactation rooms” because a lot of the employees complained and said they should be accommodated. I am currently pregnant and I work in a tiny office now. I will be lucky if I get 8 wks off unpaid for maternity leave. With this child, if I breastfeed/pump, I will quit before returning to work. The only places I could pump at work is the one shared bathroom (YUCK!!) or my car (no privacy and I live in TX where the temp reaches 107) But I do not expect the company to build me a lactation room or give up an office just for me to pump.

    Erica  |  September 10th, 2009 at 8:00 am

  • I get the whole unauthorized break issue; but I do agree that it should have been treated with more compassion. As pointed out, to the employee who needs to pee you don’t say “well you shouldn’t have had that water right before the shift started”. On the other hand, I don’t see where the employee tried to take the decision up the chain at all either. If there were men in the area I would have noted how they’d feel to see me leaking through my shirt and that probably would have cleared things up immediately.
    Where I work now there are lactation rooms on every other floor, they have to be scheduled and the moms work out the schedules amongst themselves. They’re not lavish (they’re slightly larger than a phone booth), but they have fridges in them so the milk can be stored there. It is strange to me that most offices couldn’t find a small niche like that. All you need is a chair and an electrical outlet and a door lock. Ours has a key so only authorized personnel can go in but if it is a small office you might not even need that.
    I would encourage women who work in non-understanding firms to try going hybrid, if you will: formula at day care, breast milk at home. We did this (the office I worked in then offered only the bathroom stall, and I couldn’t store milk in the fridge either so it just didn’t work) and it actually made our time together special; this is something she got only with mom physically. This continued for about a year; she self-weaned around the same time we introduced cow’s milk.

    Mich  |  September 10th, 2009 at 10:23 am

  • Mich, I get what you’re saying about “going hybrid,” but I don’t think that it necessarily solves the problem of pumping at work. Even if your kid gets formula part of the time, as long as a woman is breastfeeding at all, there’s still the problem of engorgement when she goes too long between feedings/pumpings. There’s also the issue of milk supply plummeting if the breasts aren’t emptied in one way or another on a regular basis. For many women, feedings in the morning and night wouldn’t be enough to keep their supplies up or engorgement at bay, so pumping at work is still an issue that needs to be addressed.

    Leah  |  September 10th, 2009 at 11:07 am

  • Leah, I know you have more experience with this than I do, but I also know that my mom used to breastfeed “part time,” i.e., the baby got only breast milk when she was off work, and no breast milk while she was at work. With her two youngest, this continued until the babies were over 2 years old. I have never heard that there is a need to pump all day to keep a supply for part-time breastfeeding. Yes, there will be leaking during the transition time, but there are products to deal with that.

    SKL  |  September 10th, 2009 at 12:04 pm

  • My thoughts are all over the place on this, I am so bothered by it. First of all, when you are lactating, your breasts don’t care when a break is scheduled and if a workplace cannot provide some flexibility to allow for this, then I am sorry, but it is anti-woman and the action is discriminatory. If men’s bodies leaked anything, anywhere at certain intervals, I guarantee there would be flexibility for that (can’t have an important man in the office feeling uncomfortable). Speaking of which, I wonder how many employees take unscheduled breaks to surf the web, email or phone friends, or to pee - or perhaps other bodily functions- must nature call on a scheduled break? And, again, if a scheduled break is not required for those aspects of nature, but it is for lactation (a female only activity) then it is discriminatory against women! If the argument regarding unscheduled breaks truly held water, then there should be a lot more firings for the above mentioned items.

    I think this has terrible implications because there is an unending litany of ways in which mothers who work are discriminated against by labeling their actions and choice, as an out to requiring anything legal to help or protect them. Want time to go to your kids events/take them to the doctor? Sorry, working is a choice you didn’t have to make. Want equal pay for doing the same job as effectively as Bob in the next cubicle even though he works an hour more a day than you (but still has the same annual sales - go figure) - sorry - you’ll be punished for leaving (even if you are just as effective). This is just another acceptable out that leaves women in the lurch (and, where is the American Academy of Pediatrics with their recommendations for 1 year of breastfeeding for optimal results information - they should be filing an amicus curae for this woman)

    Got milk? Fine - just don’t pump it on our time or you’re outa here…

    Diane Feirman  |  September 11th, 2009 at 6:39 am

  • An additional comment in response to all of those talking about how women will take advantage, cheat, etc. and there will be even more of a backlash. Every argument about working mothers in the workplace talks about lowered productivity, and it’s unfair to others, etc. etc. Where are the studies showing mothers are less productive. I am a Mom to 2 - and I actually brought my first to work with me until 11 months old and the 2nd until 6 months old. I was more productive even juggling nursing and childcare than single men on our staff. The working Moms I know are extraordinarily productive at their jobs. Now, of course, if productive is defined by works like a maniac 12 hours a day - well, I don’t think any parent or person who isn’t finding a cure for cancer or saving lives should be doing that.

    Diane Feirman  |  September 11th, 2009 at 6:46 am

  • I’m lucky to live in California where employers are required to having a space for breastfeeding mothers to pump - and it can’t be the electrical closet or the bathroom. But even in California while my employer is required to create a private space for me to pump, my employer is NOT required to give me any additional time to pump. I truly struggled with pumping at work for 3 months before I said MERCY and transitioned to formula during the day. There were always meetings that seemed to correspond with when I needed to pump. I remember many days where I would literally be praying that I didn’t start leaking immediately. I never set a schedule. I work in the high-tech industry where I’ve never ever heard of a “scheduled break.” People take their breaks and lunch when it fits into their own scheduled. So pardon my ignorance here, but why couldn’t she pump during the scheduled the breaks? Yes it would have been hard at first, but aren’t there state laws about when you have to take your breaks? I’m sure that there would have been engorgement at first, but pumping (or feeding) right before work, then 2-3 hours later for a break, 2-3 hours later for lunch, 2-3 hours later for a break — well that seems reasonable. Am I missing something here?

    Robyn - Who\\\'s the Boss?  |  September 11th, 2009 at 7:14 am

  • I feel a great deal of sympathy for this woman, and can see her side–I have always had a little peeve of an issue with smokers who get breaks throughout the day when I can barely sneak out for lunch between meetings. But we live in a world where you have to play by the rules or know when they can be bent. You have to work within the boundaries of your company. She’s hopefully better off not working for a company with a bias toward her situation, but that’s assuming she can find another job in this economy.

    Brenda  |  September 11th, 2009 at 7:21 am

  • Two issues here, one unauthorised breaks… Yes not acceptable, the employer needs to amke an adjustment with new mothers and give them the flexibility needed. The employee on the other hand needs to put in the additional time to compensate for the breaks she took. Its only fair.
    The second issue is company’s tolerance to the frequent breast pumping breaks. They have to adjust. A mothers body goes through a lot, and breast pumping is only natural and she needs to do it. Yes its a choice, but a choice that govenmnet supports.
    When i started in my new company, being a consultant, i could not use the lactation room. The manager tried a lot with HR to bend the rules, but alas no. We gained a middle ground, using scheduled conference rooms, with a sign outside and me to make up the time. As long as the work did not suffer, i was more than welcome to tkae as many breaks i needed to. Which realistically was 2-3 times in a 8 hour day.
    I do understand, not all companies are that adjusting. This was something that i had brought up in my interview and ensure to tell my hiring manager, that i was a new mom and needed the flexibility.
    Having said that, if the employer is not that adjusting or the work is such that you need to be there on a particular shift, you have to find either someone to cover for you (With approval’s of course). Being a new mom is not justification enough to misuse the company’s policies.

    GNSD  |  September 11th, 2009 at 7:27 am

  • I went back to the article and reread the legal judgements (and suggest everyone do this) and it seems to me that she was terminated for taking unscheduled bathroom breaks (allowed - no limitations) but admitting that she was using them to pump because she needed to (not allowed). If she is allowed to go to the bathroom as much as she wants whose business is it what she does in there? That distinction - that it is not the time, but what it is used for - is the discriminatory basis for me.

    Diane Feirman  |  September 11th, 2009 at 7:43 am

  • Frankly I think employers shouldn’t be forced to let employees take pee breaks any old time, either, unless they have a documented medical issue. Isn’t it enough that they are forced to give a break every 2 hours? I have worked long hours in factories, etc., where I would never take an unscheduled break to use the restroom. My colleagues told me I was stupid to use my scheduled break time for bodily functions, but every time I left the machine for even a minute, it would cause multiple occurrances of scrap and cost the company money. It makes me sick to know that many Americans think that’s just fine, and it’s more important for them to have those extra three minutes to suck on their cigarrettes or flirt with the married guy across the hall. It is even more unfortunate that this law is used as an excuse for various other unreasonable demands.

    It may be true that you can’t fire someone for using the restroom, but I guarantee that employee moves toward the top of the “expendable” list, and that’s how it should be.

    If this woman was using bathroom breaks to pump, she was obviously taking additional breaks to use the bathroom and even more breaks to do whatever else she deemed appropriate during “scheduled” break times. Wrong, wrong, wrong. If you want to pump, go get a job that allows you to pump.

    The US government was not formed to be a nursemaid to individuals who cannot get their acts together. I wish people would read the founding documents and understand what our country was intended to be. We are supposed to be FREE to identify and pursue what makes us happy, not trample the freedom of businesses by curtailing their right to negotiate.

    SKL  |  September 11th, 2009 at 8:39 am

  • SKL - you are certainly entitled to your opinion on everything you are saying. However, from the pure point of a legal ruling (which this is and which you say you haven’t read, which you should to comment on it) the ruling is in the context of a company that has a policy of allowing unlimited unscheduled bathroom breaks. We can talk until the cows come home on the pros and cons of this (personally, I think that if you are getting your job done based upon pre-existing agreed upon measures of that - e.g. widgits made, sales completed, strategic items completed you can go whistle dixie in the can if you want and if you are not, then you better apply yourself more) but for the purposes of this legal ruling that is the company policy. And, to judge the time spent as not okay because you are doing something that only a female can do, is discrimination. So, if I have a heavy period and need to go to the bathroom more often one day to change my tampon am I open to being fired or expendable?

    Diane Feirman  |  September 11th, 2009 at 9:26 am

  • Diane, companies are forced to allow unlimited bathroom breaks because every time they don’t, they get sued, and they usually lose. Hence this is not “company policy” in the sense that the company willingly chose it / would do so in absence of the current legal environment. It’s not like the officers sat down in a meeting and said “let’s create a perk for men who pee a lot, but not for women who are lactating.”

    It’s true that I didn’t read the case, but you were talking about a general concept, which has been brought up by others before (in other forums). It’s the concept I was arguing against.

    I probably will read the case later, but very much doubt that it will change my mind.

    SKL  |  September 11th, 2009 at 10:02 am

  • OK, I’ve read the case (a very short, not very informative one) and the concurrances and the one dissent. Only in the dissent is there an implication that maybe this woman wasn’t doing anything everyone else was doing (spending a commercially reasonable time in the bathroom on unscheduled breaks). The dissenting judge got a lot of things wrong as far as the purpose of the Supreme Court, etc., and all the other judges (male and female) felt that it was clear the woman was out of line.

    There was disagreement regarding whether or not the court should address the issue that’s riling people up here: whether lactating should qualify a woman for the same protections as pregnancy. The judges who thought “yes” (the minority) seemed to think it obvious that pregnancy always leads to extended lactation. This is far from true, as should be obvious to any educated women. Heck, even a man can lactate if he wants to. Many adoptive moms breastfeed, while a large % of biological moms (including SAHMs) choose not to. And what about women who breastfeed until the child is 5? How long should they be able to claim pregnancy discrimination if they aren’t pulling their weight? The majority of the court decided not to get into all that because, according to well-established legal principles, it would have been inappropriate. (Because under the agreed facts, the plaintiff would have lost either way.) (Yes, I’m an Ohio lawyer.)

    The more I read about this case (having now viewed the Salon’s take on it too), the more I feel the furor is based on an attitude that women just want to take whatever they can get, and if that means sticking it to the “man,” so be it. It just isn’t a principled position.

    SKL  |  September 11th, 2009 at 10:43 am

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