For nearly a decade, federal law in the United States has given breastfeeding women certain protections at work, like time throughout the day to pump and a space that’s not a bathroom in which to do it.
Though that may not sound like much, the so-called “Break Time for Nursing Mothers” provision added to the Fair Labor Standards Act under President Barack Obama has been hailed as a fairly simple way for employers to boost employee satisfaction and retention.
But a stark new report from the Center for WorkLife Law at the University of California, Hastings College of the Law, suggests that millions of women who likely believe they’re protected under current laws actually aren’t — and that breastfeeding-related discrimination at work is rampant.
“This is the first report of its kind,” Jessica Lee, staff attorney with the Center for WorkLife Law, told HuffPost.
“In 2016 we reported that breastfeeding discrimination cases had risen by 800 percent over the previous decade, but did not break down the details of those cases,” she said. “In terms of the level of protection for breastfeeding workers, it is increasing — but not quickly enough to keep up with the number of breastfeeding mothers in our workforce.”
More than 27 million women don’t have the workplace accommodations they need for breastfeeding — and a third aren’t protected by federal laws requiring their employers to provide them.
According to the report — which pulled together breastfeeding cases over the past decade, as well as national workforce data and in-house interviews with working moms — more than 27 million American women workers of childbearing age lack the basic protections needed to breastfeed: break time during the day, space in which to pump, and other reasonable accommodations based on their particular bodies or their lines of work. (For example, a woman whose job regularly exposes her to radiation would need to avoid exposure while breastfeeding, and a woman who develops mastitis, a painful breast infection, might need a few days off from work to recover without fear of being penalized or let go.)
Within that broader group, 9 million American workers are specifically excluded from the Break Time for Nursing Mothers federal provision because of what Lee called an “absurd consequence” of that provision being attached to the much older, much broader Fair Labor Standards Act of 1938 ― which didn’t extend protections to all professions.
That group includes teachers and nurses, who are explicitly not protected by federal law.
The original Fair Labor Standards Act left out certain categories of workers, including nurses and teachers. As a result, when the breastfeeding provision was tacked on to the FLSA in 2010, it too left them out.
“There is no principled reason to leave out these workers, and according to advocates we interviewed for our report, the narrow coverage of the breastfeeding provision was unintentional,” Lee said.
Unintentional or not, the way the law was written means that millions of teachers and nurses — fields that are dominated by women — are not covered. Nor are women in many other fields, including (but not limited to) transportation workers, farmworkers, certain retail employees and managers across many industries.
“I’m here teaching these babies basic life skills and I don’t even have the time to provide my own baby with food.”
– Catherine, kindergarten teacher
In some cases, state laws have helped fill in coverage gaps, and many employers make accommodations for their employees even if they’re not legally required to. But the Center’s report emphasizes just how challenging it can be for teachers and nurses to fit in time to pump during the day, and how they often find themselves doing it in places like supply closets.
“I had my mommy-breakdown when one day I had no chance to leave and pump, as there was zero coverage to be had,” Catherine, a kindergarten teacher, told the report’s authors. “By midday my boobs were so full that I just began leaking everywhere. Soaked through my shirt and sweater. I started thinking, I’m here teaching these babies basic life skills and I don’t even have the time to provide my own baby with food for survival.”
Breastfeeding discrimination is rampant in male-dominated professions — and it often crosses into sexual discrimination.
Nearly two-thirds of the discrimination cases considered in the report were brought by women working in male-dominated fields, like first responders, law enforcement and the construction industry.
Women working in those industries also reported being sexually harassed because of their breastfeeding. One mom in Rhode Island said she listened through thin walls while pumping and heard her colleagues talk about her “tits” and her “boobs.”
One boss commented during a meeting that “breastfed babies were obsessed with women’s breasts.” When his employee, a TV producer, expressed discomfort and attempted to leave, he reportedly said, “Wait, wait! I’m going to demonstrate on you.” Then he simulated squeezing her breasts and tried to lay his head on her chest.
Nursing women have relatively little recourse to fight for their right to pump on the job — and to fight discrimination.
Even women whose jobs are explicitly excluded from the Break Time for Nursing Mothers provision may be protected to a certain extent by the federal Pregnancy Discrimination Act or the Civil Rights Act. And just over half of states have laws that provide accommodations for breastfeeding workers.
But making sense of what kind of legal protection they’re afforded, and under which laws, is a challenge for women — and the report charges that even when women are protected under the break time law, noncompliance is widespread.
“One boss commented during a meeting that 'breastfed babies were obsessed with women’s breasts.' When his employee expressed discomfort and attempted to leave, he reportedly said, 'Wait, wait! I’m going to demonstrate on you.'”
Women aren’t totally powerless. Lee said that in some cases, women can turn to state agencies that will intervene on their behalf if they are being denied time and a place in which to pump, or if they are being discriminated against for breastfeeding. Others may find that their union representatives are helpful, or that breastfeeding advocacy groups are able to intervene on their behalf. Still others may find it’s best to bring a discrimination lawsuit, she said. But all of those options take time.
“Even a few hours not expressing breastmilk on schedule can have an impact on a worker’s health and milk supply, so few of these options are quick enough for most instances of discrimination,” Lee said.
And this is all exponentially more difficult for mothers who are living paycheck-to-paycheck and who simply cannot take the financial risk of upsetting their employers.
“Many simply assume they’re protected, and it sickens me to tell nearly 30 million women that they aren’t,” Lee said. “But I would rather they hear it now, when they can do something about it, than when they encounter a boss who is making them choose between breastfeeding and a paycheck.”