Know Your Breastfeeding Rights
Breastfeeding enhances infant health and early childhood development. As a result, many women choose to breastfeed their children. When these women are in the privacy of their own homes, breastfeeding is never an issue. When a breastfeeding woman ventures out into public places or returns to work, however, issues of discrimination can arise.
There have been many recent changes to the laws surrounding breastfeeding and lactation.
Breastfeeding in Public is Legal
The presence of a woman who is breastfeeding in a public place makes some people uncomfortable, especially if the woman (like many “lactivists”) chooses not to use a blanket to cover up. Offended individuals might complain to a manager of the public place, who might then in turn ask the woman to cover up, move to a bathroom or locker room, or leave the premises. This is illegal in all 50 states.
No laws in the United States forbid breastfeeding in public places, and many expressly allow it. Increasingly, incidents of women being asked to stop breastfeeding in public places (like restaurants, malls or swimming pools) are being met with “nurse-ins” and public apologies from the offending entity.
Breastfeeding women should understand their rights. Managers of public places should understand their responsibilities.
Breastfeeding and Return to Work
Breastfeeding women who return to work, as most do, must continue to “express” their milk – manually or by pump – every three hours or so in order to maintain milk supply (to feed the baby in the mother’s absence), to prevent milk leakage from the breasts, and to avoid painful engorgement of the breasts that can lead to medical complications such as mastitis.
About half of the states have addressed this issue by passing employment laws that mandate breaks for working women to express milk. In states without protections, lactating women could be (and often were) fired for taking time to express milk during the workday. This is changing rapidly.
The Pregnancy Discrimination Act
Until recently, numerous lower courts held that lactation is not protected by the Pregnancy Discrimination Act of 1978. In June 2013, the 5th U.S. Circuit Court of Appeals held unanimously that it was.
The Court noted the biological fact that lactation is a physiological condition distinct to women who have undergone a pregnancy. Accordingly, under Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act, firing a woman because she is lactating or expressing milk is unlawful sex discrimination.
Breastfeeding and the ACA
Prior to enactment of the Patient Protection and Affordable Care Act in 2010, employers did not have to accommodate the milk-expression needs of lactating employees under federal law and the laws of many states. Employees could be fired for taking time to express milk at work.
Section 4207 of the ACA amends the Fair Labor Standards Act of 1938 to require that an employer provide reasonable break time and a private (non-bathroom) place for an employee to express breast milk for one year after a child’s birth. An employer with fewer than 50 employees who can demonstrate undue hardship can avoid these requirements.