Yes, the issue is "protected class."

While common sense (mine at least) says that breastfeeding discrimination is
sex discrimination, federal courts sadly have not come to the same conclusion.

Something I should have added to my earlier post concerning Ohio.  It is
unknown how that litigation would have resolved if the case had not settled.
 A federal court (I believe the case was Durungs v. Wal-Mart) had held that
breastfeeding discrimination was NOT sex discrimination under the Ohio Civil
Rights Act.  It was that federal court decision which in part motivated the
Ohio legislature to pass that state's public breastfeeding law, however the
legislature did not include it in its civil rights law. So, had that
Commission filing proceeded, there would likely have been litigation
concerning whether the Commission could find that breastfeeding
discrimination was sex discrimination when the federal court has found that
it wasn't.

Sorry, that is a long story short. But sadly judicial interpretation of "sex
discrimination" has been governed by a line of cases with such findings as
pregnancy discrimination is NOT sex discrimination because it is
discrimination against "pregnant persons," deemed by the US Supreme Court to
be a separate class from women. <deep sigh>

Hope that helps.

Yours,
Jake Marcus, J.D.

On Wed, 11 Feb 2009 22:43:54 +0000, E. Spencer Joslin-Montlick, MD
<[log in to unmask]> wrote:

>Jake Marcus stated:  "This mom could very well have been arrested for
trespass and statements from Denny's regional management indicate Denny's
and the local police were prepared to proceed with that." 
>
>
>
>Can you elaborate on that (for those, like me, who aren't as conversant w/
the law)? 
>
>
>
>I always go to:  http://www.ncsl.org/programs/health/breast50.htm   to
check on relevant state statutes, and according to the site this is the NC law: 
>
>
>
>N.C. Gen. Stat. § 14-190.9 (1993) states that a woman is allowed to
breastfeed in any public or private location, and that she is not in
violation of indecent exposure laws. (HB 1143) 
>
>
>
>Clicking on the Statute link, I find this:  (b)       Notwithstanding any
other provision of law, a woman may breast feed in any public or private
location where she is otherwise authorized to be, irrespective of whether
the nipple of the mother's breast is uncovered during or incidental to the
breast feeding 
>
>
>
>So if it's not illegal (i.e. not indecent) to BF in any public or private
location where she is authorized to be, and if she's presumably authorized
to eat at Denny's, how is that trespassing?  What am I missing?  Is the
problem that a restaurant owner has the right to throw anyone out of the
restaurant he wants, unless it's a protected class (e.g. can't throw a
person of color out simply for being a person of color, but BFing woman
isn't a protected class), so once he decided this woman wasn't wanted (b/c
of BFing) she was trespassing?  Still doesn't make a lot of sense to me,
since if she's legally allowed to BF there, I don't see why the owner can
throw her out.  Someone who makes a habit of tossing people out of his
restaurant isn't going to have a restaurant for long ... 
>
>
>
>Thanks for the legal assistance! 
>
>
>
>Confused in CT (with 3 laws on the books ... see below) Spencer 
>
>
>
>Conn. Gen. Stat. § 31-40w (2001) Conn. Gen. Stat. § 31-40w (2001) requires
employers to provide a reasonable amount of time each day to an employee who
needs to express breast milk for her infant child and to provide
accommodations where an employee can express her milk in private. (HF 5656) 
>
>Conn. Gen. Stat. § 46a-64 (1997) prohibits places of public accommodation,
resort or amusement from restricting or limiting the right of a mother to
breastfeed her child. (P.A. 97-210) 
>
>Conn. Gen. Stat. Ann. § 53-34b provides that no person may restrict or
limit the right of a mother to breastfeed her child. 
>
>
>
>
>
>
>%%%%%%%%%%%%%%%%%%%% 
>
>       E. Spencer Joslin-Montlick, MD 
>
>            [log in to unmask]   
>
>
>
>%%%%%%%%%%%%%%%%%%%% 
>
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