Heather Shelley 

 

Friday, Aug. 28, 2009 11:29 PDT

 
<http://www.salon.com/mwt/broadsheet/feature/2009/08/28/fired_for_pumping/in
dex.html> Lactate on your own time, lady

On Thursday, the Ohio Supreme Court affirmed that Totes/Isotoner had the
right to fire breastfeeding mother LaNisa Allen for taking breaks to pump
milk. Yeah, you read that right. Timothy P. Reilly, attorney for
Totes/Isotoner, told the Columbus Dispatch
<http://www.columbusdispatch.com/live/content/local_news/stories/2009/08/28/
LACTATE.ART_ART_08-28-09_B1_8EET5UK.html?sid=101> , "Totes has taken the
position since the beginning of this case that it terminated the plaintiff
(Allen) for a proper reason, and that's that she took unauthorized work
breaks, regardless of her sex or condition." Because unauthorized pumping,
clearly, can be divorced from one's "sex or condition." This would be the
rare instance in which I find myself tempted to type "LOL," except the
Supreme Court
<http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-4231.pdf>  used
essentially the same reasoning: It was on Allen to prove that the stated
cause for her dismissal (failure to follow directions) was a pretext for
discrimination, and technically, she didn't. Ergo, the court decided not to
bother addressing the thornier question of whether lactation counts as a
pregnancy-related condition, which would be protected under the state's
anti-discrimination laws.

In the strictest legal sense, the ruling is logical: Allen admitted she took
unauthorized breaks, and that's a firing offense. If she can't prove that
someone said, "Ha! Now's our chance to get rid of her for being a woman!"
then apparently, she can't prove discrimination. But it's manifestly
weaselly to suggest that her "insubordination" can somehow be separated from
the fact that she was lactating, especially since they were responding to a
decision that included this colossal eye-roller
<http://www.buckeyestateblog.com/warning_unauthorized_lactation_can_get_you_
fired_moms> :

Allen gave birth over five months prior to her termination from [Isotoner].
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.

Of course not.

Chief Justice Thomas Moyer and one of the court's three women, Justice
Maureen O'Connor, at least had the decency to "concur in judgment only,"
meaning they agreed that Allen hadn't technically proved discrimination but
believe lactation should, in fact, be covered under the law against
pregnancy discrimination. Yet the only straight-up dissenting opinion came
from Justice Paul Pfeifer, who wrote, "Seriously? Are you kidding me with
this?"

OK, no he didn't. But he did say that even if you insist on separating
Allen's extra breaks from her condition as a lactating mother, then they
should be regarded no differently than unscheduled pee breaks. "There is no
evidence in the record about any limit on the length of unscheduled restroom
breaks and no evidence that employees had to seek permission from a
supervisor to take an unscheduled restroom break. There is evidence only
that unscheduled bathroom breaks were allowed and that LaNisa Allen was
fired for taking them. What made her breaks different?" Ding ding ding!

More importantly, Pfeifer gets to the heart of why the court's refusal to
address whether lactation counts as "a condition related to pregnancy" is so
incredibly disappointing:

We accept cases not necessarily because of how the result might affect the
parties in the individual case, but because of how a holding might affect
other persons similarly situated. Ohio's working mothers who endure the
uncomfortable sacrifice of privacy that almost necessarily accompanies their
attempt to remain on the job and nourish their children deserve to know
whether Ohio's pregnancy-discrimination laws protect them.

Yeah, they do. And furthermore, LaNisa Allen deserved not to be fired
because her employer expected a lactating mother to go five hours without
expressing milk. Totes/Isotoner may have the law on their side by a hair,
but that doesn't change the facts. LaNisa Allen was terminated for taking 15
minutes a day to relieve a painful and distracting condition that arose
because she believed breastfeeding was best for her child and thus chose to
maintain her body's natural post-pregnancy state. Lactation is, in fact,
related to pregnancy, even if some women halt it earlier than Allen did. And
breastfeeding discrimination is, in fact, gender discrimination, unless I
missed the news that men can breastfeed now. That anyone could argue
otherwise with a straight face only highlights how absurdly reluctant some
people are to acknowledge and oppose blatant sexism. 

 

― Kate Harding

 


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