This is the 67th post in a series on Booby Traps, made possible by the generous support of Motherlove Herbal Company.
In 2008, Texas mother Donnicia Venters was planning on returning to her job at Houston Funding after having a baby. She called the President of the company to discuss her return to work and mentioned pumping. She says that “while [the president] had been friendly at the beginning of the call, he paused for several seconds after she mentioned the breast pump, and then stated, ‘well, we filled your spot.’”
In 2007 California mother Marina Chavez was an employee at Acosta Tacos when she had her fourth child prematurely. She returned to work after a month, and her boyfriend brought her baby to her at her lunch break so she could breastfeed in the car. She was told that she couldn’t return to work until she had stopped breastfeeding. When she argued, she was fired.
What happened next in each of these cases shows you why it’s important to get to cozy with the Pregnancy Discrimination Act of 1978 and the phrase “related medical conditions.”
To explain this complicated issue, I went back to an excellent podcast interview I did with Jake Marcus for Motherlove Herbal Company earlier this year. In it, she explained that the Pregnancy Discrimination Act of 1978 protects women from discrimination on the grounds of “pregnancy, childbirth, or and related medical conditions.” They cannot be fired or demoted or denied equal benefits, for example, because they are pregnant or recovering from childbirth.
But is lactation (breastfeeding, pumping, or even just producing milk) a “related medical condition?” This question is at the the core of the question whether moms can be fired for breastfeeding, and it is relatively untested in the courts.
As it stands, the answer is nope. Yes, if you are employed and want to pump at work there are various state and federal laws that give you that right. But if you show up at work after your maternity leave and say “Hi, I’m breastfeeding!” or “Let’s see if my breastpump cord will reach this outlet…” you can legally be shown the door. State anti-disrcimination laws generally mirror the federal law, so this is the case under state law as well.
Except in California. Remember Marina, breastfeeding her preemie son in the parking lot? Her case went to the state’s Commission on Fair Employment and Housing, which ruled that breastfeeding was in fact a “related medical condition,” and that she should have been protected from discrimination on that basis. Then this year the legislature and Governor passed a bill that makes breastfeeding a “related medical condition,” thereby protecting breastfeeding mothers against discrimination.
So if you happen to be pumping in California right now, you might want to send Marina Chavez a little mental thank you, since it was her case that gives you protection against being fired.
So that’s one (trend-setting) state. What about moms in the other 49, like Donnicia Venters of Texas?
The Equal Employment Opportunity Commission took up her case, arguing to a federal court in Texas that breastfeeding and pumping is covered by the Pregnancy Discrimination Act. They lost, with the court finding earlier this year that “firing someone because of lactation or breast-pumping is not sex discrimination.”
But did you catch who argued Donnicia’s case? It was the EEOC – an arm of the federal government. That means that their support for this case was an official policy of the federal government. And I think that that bodes well for eventual change.
That change might come through a court decision, or it might come through legislation, such as the Breastfeeding Promotion Act, still pending in Congress. Either way, my money is on Marina and Donnicia.
What do you think of the fact that you can be fired for breastfeeding or pumping? Of California’s new law?