Got rights? The legal landscape for nursing women in the workplace

Issue Vol. 10 No. 1 January 2008 By Itia Roth

There has been a lot of discussion recently - particularly in the media and on private blogs - over the case of Sophie Currier, the Harvard medical student who requested an accommodation from the National Board of Medical Examiners (“NBME”) for extra break time during her licensing exam to express breast milk for her five month old daughter. The NBME denied Currier’s request, but later offered her some accommodations -- such as the use of a private room during the standard allotted break time and permission to bring food and drink into her testing room. Currier sought a preliminary injunction requiring the NBME to provide her with sixty extra minutes of break time per test day. A Superior Court judge denied her request. Currier appealed to a single justice of the Massachusetts Appeals Court who vacated the lower court’s order and granted Currier’s petition.

In arriving at its decision, the Court considered the health benefits of breastfeeding for both children and nursing mothers and the potentially severe physical consequences that would result for Currier if she were not able to properly express milk during the exam. The Court found that since the amount of break time normally provided by the NBME – forty five minutes for eight hours of exam time – was insufficient to allow Currier to express milk, and take care of her other personal necessities, she was at a disadvantage compared to the “male and non-lactating female examinees.” In the Court’s words: “Without the allocation of an additional sixty minutes [to express breast milk], the petitioner must make a significant Hobbesian choice: use her break time to incompletely express breast milk and ignore her bodily functions, or abnegate her decision to express breast milk, resulting in significant pain. Under either avenue, petitioner is placed at significant disadvantage in comparison to her peers.” The single justice determined that, especially in light of NBME’s admitted ease in logistically accommodating Currier’s request, the only way to equalize the playing field was to grant her requested accommodation.

What is perhaps most interesting about this decision, and what makes it particularly significant to employers, is its legal reasoning. Currier’s claims were brought under the Massachusetts Declaration of Rights and the Massachusetts Equal Rights Amendment, alleging that NBME’s refusal to provide additional break time in which to express milk had a disparate impact on nursing mothers and therefore constituted sex discrimination. Yet many of the cases cited by the Court for their precedential value were claims of pregnancy discrimination, brought under M.G.L. ch. 151B. The Court seemed to gloss over any legally significant difference that may exist between a pregnant woman and a nursing woman, even referring to lactating as a “post-pregnancy condition,” and implying that discrimination based on either is challengeable as sex discrimination, under whatever statute.

Given the Court’s approach, there is good to reason to believe that the Court’s holding will have broad impact on nursing women’s rights in the workplace. Indeed, by the Court’s reasoning, to the extent that discrimination based on pregnancy is protected by Chapter 151B, so too is discrimination based on lactating. Thus, any employment policy that may have a disparate impact on nursing mothers should probably be reconsidered. Moreover, it may become necessary for employers to provide their nursing mother employees with appropriate break times and private areas in which to express milk.

To some degree, whether or not the Court’s rationale is sound is beside the point. Public policy clearly favors accommodating a woman’s choice to breastfeed her child (and thus to express milk when she cannot do so directly). Creating an employment environment where women do not feel that they can make this choice, where nursing mothers feel uniquely burdened and uncomfortable -- in ways that their male counterparts do not -- seems unwise even if not unlawful. Employers should be supporting their new mothers in their return to the work after childbirth, not making it more difficult for them. Providing comfortable, clean environments in which to express milk, as well as the time to do so, goes a long way in helping with that transition.

In light of the public policy considerations favoring breastfeeding, there is a bill currently pending in the legislature that would provide specific protections to nursing mothers, in the workplace and beyond. Among other things, Senate Bill No. 2704 will make it unlawful for employers to prohibit an employee from expressing milk, will require employers to provide unpaid break time and make reasonable efforts to provide an appropriate place to do so, and will explicitly make it unlawful to take an adverse employment action against an employee who expresses milk in the workplace. The proposed bill will also make breastfeeding in public lawful and exempt from indecency laws, and will make it unlawful to intimidate or interfere with a mother breastfeeding her child.

Interestingly, Massachusetts is behind the curve in considering this kind of legislation. Forty-five other states already have laws protecting breastfeeding mothers and their babies. Thirty-seven allow mothers to breastfeed in any public or private location, nineteen exempt nursing mothers from public indecency laws, and eleven states specifically have laws related to nursing mothers in the workplace.

The bottom line: at this point, nursing mothers do not have any specific rights in the workplace but given the Court’s recent decision in the Currier case and the pending legislation, it appears that nursing women will soon be protected by law.