Legal landscape note: This article was originally published in 2015 and describes the law as it stood at that time. New Jersey law changes frequently.
You return from maternity leave, ask for a private place to pump breast milk, and by the end of the day you are out of a job. Could that really survive a discrimination claim? In 2015, the U.S. Supreme Court declined to review an Eighth Circuit decision that let exactly that outcome stand -- reasoning, remarkably, that firing a woman over lactation was not sex discrimination because some men can lactate too. The facts behind the case, and the criticism the reasoning drew, are worth reading closely.
Based on reporting by David Ferguson, February 3, 2015.
The Supreme Court declined to overturn a lower court's ruling that an insurance company was within bounds when it fired a breastfeeding mother. The woman's suit was dismissed by the Eighth Circuit Court on the grounds that firing a woman for breastfeeding isn't sexist because men can lactate, too.
The ACLU's Galen Sherwin wrote Monday that former Nationwide Insurance Company employee Angela Ames sued her employer when she returned from maternity leave to find that no allowances had been made to enable her to pump breast milk for her baby during the day.
When Ames asked her supervisor for accommodations that would enable her to express milk and store it for her child, the supervisor reportedly responded that Ames should "go home and be with your babies" instead. That supervisor went on to dictate a letter of resignation to Ames that day, effectively forcing her to resign.
Last week, the U.S. Supreme Court sided with Nationwide and the Eighth Circuit Court, denying Ames' petition for a review of her case's dismissal. The Circuit Court's decision said that for Nationwide's firing of Ames for taking time to express milk at work could not have been sexist because under certain circumstances, some men can lactate, too.
"The court's reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn't sex discrimination because both men and women can be non-pregnant," Sherwin wrote. "Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It's disheartening to see it resurface again." The Court also found that the dismissive statement that Ames should "go home and be with (her) babies" was in fact gender neutral and not directed at Ames because she was a new mother.
Additionally, the circumstances around the case indicate that Ames was pressured into agreeing to sign the letter of resignation when she was upset and in pain. It was her first day back from maternity leave and Nationwide denied her access to the company's "lactation room" for new mothers because they said they needed three days to process Ames' paperwork, a requirement no one had seen fit to tell Ames about until the day she returned to work.
A company nurse reportedly informed Ames that she could use a common area typically used by sick employees if she had to lactate that badly. The sick room, however, did not have a locking door and someone was occupying the room when Ames attempted to enter.
As Ames waited for the room to be clear, her breasts painfully swollen and beginning to leak, her supervisor came to her desk and informed her that she would be responsible for all of the work that she had missed during her leave time. All of it must be completed, said the supervisor, within the next two weeks -- meaning a considerable amount of overtime -- if Ames did not want to face disciplinary action.