A Trip Down Mammary Lane: Will Arizona’s Workplaces Have Space for Nursing Mothers?

By Daniel Restrepo.

As positive attitudes toward breastfeeding have increased in the last decade, so too have the number of breastfeeding discrimination lawsuits. However, there is uncertainty as to what rights mothers have to pumping in the workplace. Courts are split as to the scope of breastfeeding protections in the Pregnancy Discrimination Act (“PDA”) and Fair Labor Standards Act (“FLSA”), and the Ninth Circuit has yet to weigh in on the matter. In Arizona, two cases have taken on this issue: Behan v. Lolo’s Incorporated (D. Ariz. 2019) and Clark v. City of Tucson (D. Ariz. 2018). Given the City of Tucson has filed an appeal challenging Ms. Clark’s four-million-dollar verdict received on April 12, 2019, the states of the Ninth Circuit may soon have an answer regarding a nursing mother’s rights in the workplace.

The Scope of the PDA’s Title VII Amendments

In 1978, the PDA amended Title VII to include “pregnancy, childbirth, or related medical conditions” in its definition of sex-based discrimination. However, various courts have disagreed with the assertion that breastfeeding is a “related medical condition” such that discrimination on that basis would be unlawful.

For instance, in Derungs v. Wal-Mart Stores, Inc. (6th Cir. 2004), the court asserted that Title VII protections were inapplicable as the plaintiff was required to demonstrate different treatment from a similar subclass of men (nursing men). Because doing such is impossible, the plaintiff could not prove discrimination. Relatedly, the Ohio Supreme Court in Allen v. Totes/Isotoner Corp. (2009) held that the PDA does not protect against lactation discrimination because lactation was a medical condition related to the choice to breastfeed rather than a medical condition related to pregnancy.

However, other courts have extended PDA antidiscrimination protections to nursing mothers. In EEOC v. Houston Funding II, Ltd (5th Cir. 2013), the court held that lactation was a protected medical condition, reasoning that it is “directly caused by hormonal changes associated with pregnancy and childbirth.” The court in Hicks v. City of Tuscaloosa, Ala. (11th Cir. 2017) came to the same conclusion.

Arizona’s District Court in Behan declined to resolve this question, but cited Clark which did conclude lactation was within the purview of the PDA. As a result of this conclusion, the Clark jury awarded Ms. Clark $50,000 for her Title VII lactation discrimination claim, and $1.85 million for her Title VII retaliation claim.

The Scope of the FLSA

Under the FLSA, employers are required to provide a private room to pumping mothers and allow them reasonable—but unpaid—break time. In light of the FLSA’s enforcement mechanism, unpaid breaktime leaves nursing employees vulnerable. Should an employer refuse to provide FLSA accommodations, the employee is owed only unpaid minimum wages or overtime compensation. If breaks are typically unpaid, this means there is no recovery.

However, punitive damages are theoretically possible for retaliation under the FLSA. Yet, here too the courts are split. In Snapp v. Unlimited Concepts, Inc. (11th Cir. 2000) the court precluded punitive damages under the FLSA, reasoning that Congress did not authorize punitive damages for FLSA retaliation claims. Inversely, the court in Travis v. Gary Cmty. Mental Health Ctr., Inc, (7th Cir. 1990) permitted punitive damages, reasoning it is an appropriate remedy for intentional torts like retaliatory discharge.

The Arizona District Court in Behan did not reach a conclusion as to this issue because the employer only violated the FLSA but did not retaliate. Further, the court in Clark did not expressly consider the issue. However, it appears to have implicitly permitted such damages, as Ms. Clark received $50,000 for the city’s FLSA violation and $1.85 million for retaliation claims under the FLSA.

No Longer a SeconDairy Consideration

While the outcome of the Clark v. City of Tucson appeal is uncertain, Arizona employers should prepare for a Ninth Circuit ruling that both requires breastfeeding accommodation and forbids discrimination. In addition to mitigating significant economic and PR risk to an employer, accommodation is the ethical thing to do. If women are to have equal access to the workforce as men, we must accept that such equality is impossible absent the recognition of the working woman’s capacity for motherhood.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.

Daniel Restrepo
J.D. Candidate, 2021
Daniel is a 2L staff writer and an Arizona native. Prior to law school he received a B.S. in neurobiology, physiology, and behavior and wrote his senior thesis on the psychological effects of hiking the Pacific Crest Trail. Outside of law school, Daniel enjoys fun facts, science fiction, and karaoke. If he were a piece of cookware he’d be a cast iron skillet because he’s reliable, resilient, and heavier than he looks.

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