How are lactating mothers protected in the workplace?

by Michael Haberman on October 18, 2018 · 0 comments


Two agencies provide protection to breastfeeding mothers.

For some reason, there has been a spate of articles posted in various outlets about lactating mothers. I am not sure what the cause for this is, perhaps some employer is engaging in wrongdoing or some untrained manager has denied someone the opportunity to express breast milk. Who knows? Whatever the reason, it is a good opportunity to remind employers that there are federal protections under the EEOC and the FLSA (via the ACA) for lactating mothers in the workplace.

The EEOC

The EEOC provides protection to lactating mothers from discrimination. Here is what the EEOC enforcement guidance says:

There are various circumstances in which discrimination against a female employee who is lactating or breastfeeding can implicate Title VII. Lactation, the postpartum production of milk, is a physiological process triggered by hormones. Because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination. For example, a manager’s statement that an employee was demoted because of her breastfeeding schedule would raise an inference that the demotion was unlawfully based on the pregnancy-related medical condition of lactation.

To continue producing an adequate milk supply and to avoid painful complications associated with delays in expressing milk, a nursing mother will typically need to breastfeed or express breast milk using a pump two or three times over the duration of an eight-hour workday. An employee must have the same freedom to address such lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions. For example, if an employer allows employees to change their schedules or use sick leave for routine doctor appointments and to address non-incapacitating medical conditions,  then it must allow female employees to change their schedules or use sick leave for lactation-related needs under similar circumstances.

Finally, because only women lactate, a practice that singles out lactation or breastfeeding for less favorable treatment affects only women and therefore is facially sex-based. For example, it would violate Title VII for an employer to freely permit employees to use break time for personal reasons except to express breast milk.

As you can see there are many discrimination protections under the EEOC that employers could run afoul of in their treatment of lactating mothers. But the EEOC is not the only agency that protects mothers.

Protections under the FLSA

Almost nine years ago the Patient Protection and Affordable Care Act (aka Obamacare) amended the FLSA to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. In addition, the law required employers to provide a place for mothers to express breast milk. The guidance says:

An employer shall provide—

  • a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has a need to express the milk; and
  • a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.

An employer is not required to compensate the employee for this time, but you must be careful in mixing this with paid break times, so be careful in how this is set up.

If an employer has fewer than 50 employees they are not required to comply with the space requirement is it causes an undue hardship, but in all honesty, that is a tough hurdle to try to argue. I would suggest that all attempts to provide a private place should be made. Not only will it help you comply with the law, but it will also help with your employee relations and the image the organization projects. It may sway a valuable applicant in making a decision to come to work for you.

If you are already complying as you should, congratulations. If not, then now you have the guidance needed.


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