Published in NH Business Review 1/18/2019
According to a New Hampshire judge, "it is at least a jury question whether as plaintiff alleges, 'public policy encourages a mother to breastfeed her child, particularly where breastfeeding is imperative for the child's health.'"
For this reason, the court denied an employer's motion to dismiss a woman's wrongful discharge case after she asked her employer to allow her to breastfeed her newborn son during the workday. Plaintiff Kate Frederick will have her case heard before a jury in September 2019.
In 2012, Frederick's then-infant son refused to drink from a bottle for the first 4 1/2 months after he was born. As a result, Frederick had to breastfeed him. When she sought to return to her job at the NH Department of Health and Human Services, Frederick asked her supervisor if she could use her break to breastfeed her baby at a daycare facility less than a half-mile away from her office. The supervisor denied the request, but told Frederick there was a lactation room available for her to privately pump breast milk into a bottle.
Frederick told her supervisor this was not an option since her son, Devon, would not take a bottle. Nevertheless, the supervisor continued to deny Frederick permission to leave the premises, get extended break time to go feed her infant, or even arrange for the baby to be brought to work for Frederick to breastfeed him in the lactation room.
The lactation room, her supervisors said, was "just for pumping."
The employer's position did not change even after Frederick presented a letter from her medical provider that explained her need to breastfeed the child. DHHS eventually terminated Frederick's employment.
Under the federal Fair Labor Standards Act, an employer must provide "a reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has the need to express the milk." Additionally, the employer must provide "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."
These provisions do not apply to an employer with fewer than 50 employees if the required actions "would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer's business."
The federal law on reasonable break time for nursing mothers also does not preempt state laws that might provide greater protections to employees.
New Hampshire has no such law to provide greater protection to allow employees to express breast milk.
But new legislation might be on the horizon. It would add to New Hampshire's Law Against Discrimination and define "lactation" as "a medical condition related to pregnancy." In its unlawful discrimination statute, discriminating against a woman for being pregnant is considered sex discrimination in New Hampshire. It follows that, by clarifying that lactation is "a medical condition related to pregnancy," the legislation would outlaw discrimination on the basis of lactation as unlawful sex discrimination.
The legislation might be even more specific and define lactation as that which "includes, but is not limited to, direct access and pumping." Direct access is exactly what Frederick, whose son would not drink from a bottle, requested when she confronted her employer shortly after her pregnancy.
In Frederick's case, DHHS complied with the federal law by providing a private room that Frederick could have used to express breast milk, albeit into a bottle. DHHS has conceded that, under current New Hampshire law, it would have had to allow Frederick to breastfeed her child during normal breaks in public spaces. Failing to allow this would "restrict or limit" Frederick's right to publicly breastfeed her child. Paradoxically, Frederick, while at work, could feed her child in public, but only pump her milk in private.
The real question for the jury, then, will be whether breastfeeding an infant who cannot take a bottle is an act the public seeks to encourage. Time will tell if the Legislature answers this question first.
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