A federal court in Texas recently rejected the Equal Employment Opportunity Commission’s attempt to bring a Title VII claim on behalf of a worker who claimed she was fired because she wanted to breastfeed at work. Title VII prohibits employers from discriminating on the basis of gender, pregnancy, childbirth, and related medical conditions. The Texas court, in EEOC v. Houston Funding II, Ltd., drew the line at breastfeeding. The court said that even if the employer terminated the employee because she wanted to breastfeed at work, firing someone because of lactation or breast pumping is not gender discrimination.
Although the Texas court refused to give Title VII protection to breastfeeding mothers, employers should be mindful of protections under Florida law and the recent amendments to the Fair Labor Standards Act (FLSA) covering breastfeeding. Under Florida law, a mother may breastfeed her child in any location, public or private, where the mother is otherwise authorized to be, even if the mother’s breast or nipple is exposed. A Florida employer must allow an employee to breastfeed her baby at work.
The FLSA also requires employers of 50 or more employees to provide nonexempt employees with reasonable break time and a private location, other than a bathroom, to breastfeed or express milk, unless doing so creates an undue hardship. The FLSA amendment does not define the phrase “reasonable break time” or explain how frequently such breaks much be given. However, what is “reasonable” will depend largely on the employee’s needs, because the amount of time needed to express milk varies by woman. Unless it is clear that an employee is abusing her break time rights, employers should defer to the employee with respect to the length of the break and the number of breaks taken each day.
Under the FLSA, a bathroom, even if private, is not a permissible location for the break. Employers are not required to maintain a space that is dedicated solely for nursing mothers’ use, but a shared-use room must be available to be used privately (and shielded from view and free from intrusion) when needed by a nursing employee to express milk. Ideally, the location should have an electrical outlet, a locking door, adequate ventilation, and a chair. While not expressly required under the FLSA, it is advisable to provide a small refrigerator, or a shelf in a currently maintained refrigerator, where employees can store their expressed breast milk.
Although the FLSA does not requires the employer to pay for the “reasonable break time,” if the employer already provides paid breaks (normally no longer than 15-20 minutes) to its employees, and the nursing mother uses that break time to express milk, then the nursing mother must be compensated in the same way the other employees are compensated for break time. Of course, if the nursing mother performs compensable work during the break, she must be paid for her time.