No Discrimination Found in Lack of Privacy for Use of Breast Pump
New York Law Journal
May 20, 1999
BY DEBORAH PINES
http://www.nylj.com/stories/99/05/052099a4.htm
CLAIMS THAT an employer failed to accommodate adequately a new mother's
desire to pump breast milk on the job are not covered by either federal
gender or disability discrimination laws, a federal judge in Manhattan ruled
yesterday.
Joining a handful of other courts that have considered the question,
Southern District Judge Lewis A. Kaplan dismissed a suit by Alicia Martinez,
a cable television producer, who said her former employer, MSNBC Cable,
failed in 1997 to provide her with a sufficiently private spot to pump
breast milk during work breaks.
Because being a nursing mother is no disability, and because Ms. Martinez
fails to allege she was "treated differently than similarly situated men,"
her claims are not covered by either the Americans with Disabilities Act
(ADA) or Title VII of the Civil Rights Act of 1964, Judge Kaplan wrote.
Ms. Martinez, of West Orange, N.J., who now has a part-time job working as a
television producer, plans to appeal, said her lawyer Robert Swetnick. He
said the ruling was erroneous in several respects including its "highly
restrictive reading of Title VII."
Susan Weiner, a lawyer for MSNBC, meanwhile, said the ruling for recognized
that "MSNBC had neither discriminated nor retaliated against Ms. Martinez."
She noted that the judge found Ms. Martinez was not barred from pumping
breast milk, but had rejected several locations MSNBC offered for that
purpose.
Ms. Martinez filed suit last year against MSNBC, a 24-hour-a-day cable
television network for whom she worked as a producer between May 1996 and
December 1997. After returning from a maternity leave in March 1997, she
claimed, she was denied a "safe, secure, sanitary and private" spot to pump
breast milk for her newborn son, and was harassed for complaining.
No Protected Status
Judge Kaplan's ruling, in Martinez v. NBC, Inc. and MSNBC, 98 Civ. 4842,
granted summary judgment to the cable network. As a preliminary matter, he
noted that the court is not being asked whether legislation should be passed
requiring that employers afford reasonable accommodation to women
breast-feeding or breast pumping.
"That determination is not for the court," Judge Kaplan wrote, noting his
task is simply "to determine whether the ADA so provides.... It does not."
Judge Kaplan cited one district court ruling within the Second Circuit that
called it "simply preposterous to contend a woman's body is functioning
abnormally because she is lactating."
Judge Kaplan next found Ms. Martinez's claims also are not covered by Title
VII. "The drawing of distinctions among persons of one gender on the basis
of criteria that are immaterial to the other, while in given cases perhaps
deplorable, is not the sort of behavior covered by Title VII," he wrote.
He also rejected a Title VII claim based on a theory of "sex plus"
discrimination, which covers people subjected to disparate treatment based
not only on sex, but on sex considered in conjunction with a second
characteristic.
"To allow a claim based on sex-plus discrimination here would elevate breast
milk pumping -- alone -- to a protected status," Judge Kaplan wrote. "But if
breast pumping is to be afforded protected status, it is Congress alone that
may do so."
In a statement provided by her attorney, Ms. Martinez yesterday said Judge
Kaplan's ruling makes the fight for suitable workplace accommodations for
breast-feeding women "a lot harder."
In addition to Ms. Weiner, Brande Stellings, of the cable network, also
represented the National Broadcasting Company Inc. and MSNBC Cable LLC.
Cindy Curtis,RN,IBCLC
mailto:[log in to unmask]
http://www.erols.com/cindyrn
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