Discrimination in the Workplace: You Have a Right to Pump Breastmilk

Gender-based Discrimination in the Workplace is Illegal: You Have a Right to Pump Breastmilk

Recently, NJ.com related the story of a New Jersey woman who lost her job working as a hotel receptionist because her employer refused to accommodate her need to express breast milk for her infant daughter. This woman requested reasonable accommodations from her employer (two, short breaks during her 8 hours shift) but was told by her employer the position required her presence on the desk at all times. Despite offering to switch to housekeeping, or go to part-time, this woman’s attempts to work with her employer were ignored. Ultimately, she was told there were no positions available to her.

This is gender-based discrimination and violates New Jersey and federal law. The Affordable Care Act (“ACA”) requires employers to accommodate breastfeeding mothers (http://www.dol.gov/whd/nursingmothers/faqBTNM.htm). At present, New Jersey offers no statutory protections for breastfeeding mothers in the workplace. However, NJSA 26:4B-4 provides protections to breastfeeding mothers in public places, so long as the mother has the right to be in that place.

The ACA requires that employers provide breastfeeding mothers a private place (NOT a bathroom) and adequate time to pump breast milk, until the child is one year old. There is no requirement under the ACA that employers compensate their female employees for this time – if an employer requires a breastfeeding mother to clock out during this break period that is entirely lawful. However, if a pump break (which can take upwards of 30 minutes when you factor in the gathering of supplies, set up, and take-down of the pump) exceeds the amount of time the employer normally offers a paid break period, then the “pump break” should be compensated to the amount of usual break time but not any excess time.

Regarding the private space requirement, the ACA does not require it be a dedicated space, nor must it be permanent. Utilizing an unused office with a door, or even a privacy screen, may satisfy the requirements of the ACA. Generally, all that is required is a chair and some sort of tabletop or shelf space to facilitate the pumping.

Employers are required to provide women such breaks as needed. The mother herself determines the necessity, and not the employer.

Finally, it should be noted that an employer is expressly prohibited from retaliating against an employee if she raises a complaint that she was prevented, prohibited, or otherwise disadvantaged by pumping. Such a claim may come under the ACA, but a New Jersey Conscientious Employee Protection Act (CEPA) claim may also be appropriate. Claims under the ACA are filed with the US Dept. of Labor’s Wage and Hour Division, who investigates these claims thoroughly.

At the Simon Law Group, we will tirelessly fight for your rights. If your employer has prevented you from pumping breast milk at work, or has not met the requirements under the ACA, we can help you. Give us a call today and speak to one of our qualified attorneys today.

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If you or someone know you has experienced discrimination in the workplace for pumping breast-milk or breast-feeding, call the dedicated attorneys at Simon Law Group at 800-709-1131 or email us at info@simonattorneys.com and www.simonattorneys.com.