I have previously posted on the break time rules for nursing moms.
Now, there is an interesting new case filed out in California by a woman who claims she was discriminated against after serving as a surrogate. Mary Gonzales worked for a large hotel corporation. She served as a surrogate for an infertile company. When she returned to work, the hotel initially accommodated her need for breaks to pump breast milk. After a time period, she stopped pumping milk for the child she gave birth to and instead started donating the milk to a milk bank. When Ms. Gonzales started to donate her milk, Ms. Gonzales claimed that her managers forced her to use her lunch break rather than permit her to take breaks as needed to pump.
Ms. Gonzales claimed that she was discriminated against because her employer held impermissible stereotypes about legitimate motherhood. Her Complaint also included claims regarding her physical need for an accommodation (i.e. “clogged ducts, severe breast pain and soreness, blisters, and loss of sleep in order to express milk at night”).
Ms. Gonzales brought her lawsuit under both the Federal Pregnancy Discrimination Act (“PDA”) and California’s Fair Employment and Housing Act.
Notably, Ms. Gonzales did not bring her lawsuit under the Fair Labor Standards Act (“FLSA”) which was amended by the Patient Protection and Affordable Care Act (“Affordable Care Act” also known as “Obamacare”) to provide additional protection and break requirements for expressing breast milk during the work day. Ms. Gonzales’ counsel most likely recognized that she would not be covered under the FLSA since she was not expressing breast milk for her own child.
Whether or not Ms. Gonzales would be covered by the PDA is another question. The PDA which amended Title VII does protect a lactating woman. For example, 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. 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.”
It will be interesting to see how the Court rules with regards to the PDA allegations. One might argue that desiring to donate to a breast milk bank is akin to someone donating sperm or eggs out of an altruistic desire. Should employers be required to make accommodations for sex based altruistic biological donations or is that something an employer can require an employee to address on his or her own time?
I’ll be following this case, so check back for the outcome.
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Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.