The Illinois Legislature recently approved amendments to the Nursing Mothers in the Workplace Act, 820 ILCS 260, changing nursing mothersunpaid breaks to paid. Under 820 ILCS 260, Section 10, any covered employer must provide paid breaks to mothers needing time to express breast milk:
An employer shall provide reasonable break time to an employee who needs to express breast milk for her nursing infant child each time the employee has the need to express milk for one year after the child's birth. The break time may run concurrently with any break time already provided to the employee. An employer may not reduce an employee's compensation for time used for the purpose of expressing milk or nursing a baby. An employer shall provide reasonable break time as needed by the employee unless to do so would create an undue hardship as defined by item (J) of Section 2-102 of the Illinois Human Rights Act.
This amended law requires employers of five or more employees to provide reasonable paid break times to nursing mother who choose to express milk during the work day for up to one year after the child’s birth.
What does the Paid Breaks for Nursing Moms Amendment Mean?
The previous law only required unpaid break time. Under the amendments, employers may require employees to express milk during any break time already provided, but may not reduce their pay if that time extends beyond a regularly scheduled break. Likewise, any additional reasonable break time to express milk would have to be paid.
The previous bill also allowed for employers to avoid compliance if doing so would unreasonably disrupt with the employer’s operations, a fairly low standard to exempt compliance. Under the amended nursing law, the employer seeking an exception from the law must demonstrate that complying with the break requirements would create an undue hardship for the employer.
The term “undue hardship” is defined by the Illinois Human Rights Act as an “action that is prohibitively expensive or disruptive” when considering its nature and cost of the accommodation, the overall financial resources of the facility and employer, and the type of operation of the employer. The burden is on the employer to establish undue hardship.
The amendments kept intact a prior law that allowed for a private place for mothers to express milk. Under 820 ILCS 260/15, an employer must make reasonable efforts to provide “a room or other location, in close proximity to the work area, other than a toilet stall, where an employee described in Section 10 can express her milk in privacy.”
Illinois’ Nursing Mothers in the Workplace Act is more expansive than its federal counterpart.
The Patient Protection and Affordable Care Act amended the FLSA to require employers to provide a nursing mother reasonable break time to express breast milk after the birth of her child. The amendment also requires that employers provide a place for an employee to express breast milk. Under the Fair Labor Standards Act of 1938 (29 U.S.C. 207), the employer is not required to pay for time mothers spend expressing milk and employers are given more leeway to avoid providing paid time off:
Section 7r of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:
(1) An employer shall providea 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 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.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements 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.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.
Breastfeeding or Expressing Breast Milk as Basis of Discrimination
The failure to permit paid time to breast feed exceeds the issue of fair working conditions. It also raises the issue of discrimination under the Federal Pregnancy Discrimination Act.
In 1978, Congress passed the Pregnancy Discrimination Act ("PDA"), amending Title VII and providing that discrimination "because of sex"or "on the basis of sex" includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C. § 2000e(k). The U.S. Supreme Court has held that the PDA requires courts to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work." Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1344, 191 L. Ed. 2d 279 (2015).
While the fact of pregnancy and childbirth are readily understandable, what constitutes a pregnancy or childbirth "related medical condition" is not easily defined by the courts. The statute itself does not define what constitutes a "related medical condition." The issue the courts have struggled with is whether breastfeeding or expressing breast milk for feeding an infant can be considered "medical" conditions related to pregnancy and childbirth. This is not a question without controversy and nuance.
Undoubtedly, the protections against pregnancy discrimination do not end with the pregnancy itself; pregnancy discrimination also can be based on medical conditions related to pregnancy. In the typical case, the plaintiff alleges that she was the victim of discrimination on the basis that, after her return from maternity leave, she was breastfeeding her child and expressing breast milk for feeding. Whether breastfeeding or expressing breast milk constitutes a "related medical condition" to pregnancy for purposes of Title VII is a controversial issue to which the courts have taken a nuanced approach.
The Fifth Circuit determined, in Equal Employment Opportunity Commission v. Houston Funding II, Ltd., 717 F.3d 425, 430 n. 6 (5th Cir. 2013), that the allegation that a woman's employment was terminated because she was lactating or expressing breast milk was sufficient to assert a sex-discrimination claim under Title VII because "lactation is a related medical condition of pregnancy for purposes of the PDA." 717 F.3d 425, 428 (5th Cir. 2013).
The issue becomes more complex when the lactating employee claims discrimination because she was not provided an accommodation to enable her to breastfeed or express milk while still performing her job. For example, the Fifth Circuit in EEOC v. Houston Funding, 717 F.3d 425 (5th Cir. 2015) held that lactation is a “related medical condition of pregnancy for purposes of the PDA” and held that lactating mothers have protected status under Title VII, while also noting that several cases have concluded that the PDA does not require that breastfeeding employees be given special accommodation to enable them to breastfeed or express milk:
- Martinez v. N.B.C., Inc., 49 F.Supp.2d 305, 308-10 (S.D.N.Y.1999) (pregnancy and related medical conditions are not "disabilities" for purposes of the Americans with Disabilities Act, and the employer did not need to accommodate the plaintiff's desire to use a breast pump in the workplace);
- Urbano v. Cont'l Airlines, Inc., 138 F.3d 204, 207 (5th Cir.1998) (the PDA does not require special treatment based upon pregnancy);Falk v. City of Glendale, No. 12-cv-00925-JKL, 2012 U.S. Dist. LEXIS 87278, 2012 WL 2390556, at *4 (D.Colo. June 25, 2012) (the PDA does not compel employers to affirmatively provide accommodations, and the plaintiff failed to allege differential treatment);
- Vachon v. R.M. Davis, Inc., No. 03-234-P-H, 2004 U.S. Dist. LEXIS 6339, 2004 WL 1146630, at *10 (D.Me. Apr. 13, 2004) (the plaintiff failed to allege an adverse employment action when she asserted only that her employer did not provide sufficient accommodations for breastfeeding);
- Wallace v. Pyro Mining Co., 789 F.Supp. 867, 869 (W.D.Ky. 1990) (the PDA does not require an employer to grant additional leave to a woman wishing to stay home to breastfeed her child).
Courts faced with similar issues since Houston Funding have summarized law as follows: Where a plaintiff's claim focuses on adverse employment actions or conditions relating to her lactation breaks, as opposed to an alleged failure to accommodate a disability, an employer may be liable under Title VII." See E.E.O.C. v. Vamco Sheet Metals, Inc., 2014 U.S. Dist. LEXIS 77436, 2014 WL 2619812, at *6 (S.D.N.Y. June 5, 2014); Lara-Woodcock v. United Air Lines, Inc., 999 F. Supp. 2d 1027, 1045 (N.D. Ill. 2013) ("A number of courts have concluded that an employer is not required to offer additional accommodations for breastfeeding under Title VII or the PDA, beyond those offered to other employees who need to tend to personal needs at work."); but at least one court has found that the employer must accommodate. See Martin v. Canon Business Solutions, Inc., 2013 U.S. Dist. LEXIS 129008 (D. Colo. Sept. 10, 2013) (wherein the court held the employer's denial of access to facilities to express breast milk is relevant to whether Defendant discriminated based on pregnancy.)
The majority of the courts hold that under the PDA an employer is not required to treat breastfeeding or lactating employees better than it would treat non-lactating employees under similar circumstances, as long as it does not treat them worse. This understanding of the rule seems consistent with the Supreme Court's general observation in Young v. UPS that the PDA requires courts to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work.
Nevertheless, employers must temper this with their state laws and Section 7r of the Fair Labor Standards Act requiring reasonable breaks to express breast milk.
If you have any questions regarding complying with the employment laws guaranteeing mothers the right to express milk at the workplace during work hours, please contact Kristin Tauras at McKenna Storer.