Lactation Law Verdict Sends a Message: Don’t Mess With Mom!
By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP
May 7, 2019
$3.8 million dollars. That’s what a Tucson, Arizona jury awarded to a former fire paramedic denied workplace accommodations required under the Fair Labor Standards Act for women who want to pump breast milk for their infants. Under the law, for the first year after the birth of a child, employers must provide non-exempt employees with reasonable breaks to pump. Employers also must provide a place, other than a bathroom, that is shielded from the view of others and that is free from intrusion by coworkers or others.
According to Fire Paramedic Carrie Clark, upon her return from maternity leave, she asked to be transferred to a station that had facilities that could accommodate her need to express breast milk (and identified an employee willing to transfer from that station). She claimed that the city of Tucson ignored her request, returning her as a “swing” paramedic working at various locations.
When Clark informed her chain-of-command that there was a legal duty to accommodate her need to pump, she said that she was offered the use of private bedrooms of fire chiefs or captains. Clark told them this was inappropriate, as it would require her to wake these individuals every few hours. When she persisted in demanding accommodation, City officials questioned the need to pump every three hours, suggesting that this was excessive. She claimed she was subject to retaliation for her demands.
The damages are stunning, but likely subject to reduction. The FLSA’s remedies are limited and although Clark also claimed sex discrimination and retaliation under Title VII of the Civil Rights Act, damages under those laws are capped at a maximum of $300,000 (other than lost wages and attorneys’ fee). However, the verdict shows that employers that question a nursing mother’s need for accommodation and otherwise flout the law will be spared no mercy by juries.
So, what are employers to do where their workspaces have limited options for privacy? Resources from the U.S. Department of Health and Human Services Office on Women’s Health provide helpful alternatives that will comply with the law. What employers should not do is question the frequency or duration of breaks or make comments that denigrate the decision to pump at work. Everyone, including jurors, has a mom!