Judy shares news of the U. S. Supreme Court (SCOTUS) decision, where a
mother returned to work from maternity leave ... walking into what can only
be described as Lactation Hell. She left in tears within hours, forced into
signing a resignation.
This case has suffered from badly-written headlines, and blogs by folks who
poorly understand the byzantine procedural steps of U.S. Supreme
Courtappeals practice.
This mother indeed lost her job, and I think her boss deserves Bully Boss
of the Year Award. But the SCOTUS simply said: We do not want to hear this
case. They let stand the 8th Circuit Court of Appeals decision, that said
this mother lost her job on a "constructive discharge" theory in employment
law. The 8th Circuit did *not* address the allegations of sex
discrimination under either a Title VII (women as protected class) or
Pregnancy Discrimination Act theory. It was the *trial court* -- one step
below the Circuit Court of appeals -- that made harebrained comments about
men and lactation. See footnoote 28 in the trial court's decision.
I am offering again a link to the lawyerly-written, but accurate,
commentary from American Civil Liberties Union (ACLU), which filed an
amicus brief at the 8th Circuit Court of Appeals level. There are links
within it to the various court decisions themselves.
Sadly, the Pregancy Discrimination Act does NOT have language that
describes breastfeeding/lactation as a medical condition of pregnancy. And,
believe it or not, the courts around the country are not in agreement as to
whether or not "lactation" is a "condition of pregnancy" protected from
discrimination. So the law has a gaping hole: women cannot suffer
discrimination in their jobs if they are women ...women cannot suffer
discrimination in their jobs if their are pregnant ... but they may very
well suffer it if they are lactating, because their protections *and
remedies*in the law are unsettled.
The right-to-pump regulations at the U. S. Department of Labor, passed in
2010 as part of the Affordable Care Act ("Obamacare") are NOT a universal
fix: not all employees are covered, not all companies are covered, and the
*enforcement* authority is weak. A mother must use civil rights-related
paths for redress -- and as you saw in the paragraph above, that is thin
ice.
Bottom line: We need to get the U.S. Congress to pass the bill, that has
tried-and-failed to get through several Congresses now, to make clear that
"conditions of pregnancy" INCLUDE lactation ... and that as a result,
discriminatory actions based on breastfeeding and lactation are not
tolerated under the law of the Pregnancy Discrimination Act.
So mothers like the one in this case will have rights to legal relief.
--
Liz Brooks, JD, IBCLC, FILCA
Wyndmoor, PA, USA
Chair, ILCA Nominations Cmte (2014-16)
Secretary, U. S. Breastfeeding Cmte (2014-16)
IBCLCs empower women and save babies' lives!
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