ACLU Throws Its Weight Behind Breastfeeding Complaint

Author: Michael Cardman, XpertHR Legal Editor

November 8, 2013

The American Civil Liberties Union (ACLU) has a long history of helping employees file complaints of discrimination on the basis of religion, sexual orientation and race. Now the ACLU is also targeting discrimination against breastfeeding mothers with a federal lawsuit and an Equal Employment Opportunity Commission complaint.

"Nursing mothers who are returning to the workplace deserve to be treated with dignity and respect, not harassed because they are trying to do what's right for their baby," an ACLU attorney said in a statement.

The lawsuit and complaint allege that Saint-Gobain Containers, Inc., discriminated against employee Bobbi Bockoras because of her gender and violated the Fair Labor Standards Act (FLSA) by failing to provide her time and space to express breast milk at work following the birth of her child.

The FLSA requires employers to provide "reasonable" break time for a nonexempt employee to express breast milk for her nursing child for one year after the child's birth each time the employee has the need to do so. The statute also requires employers to provide a place to express breast milk, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public. 29 U.S.C. § 207(r)(1).

The US Department of Labor (DOL) has not issued regulations interpreting this provision of the FLSA, and does not plan to do so in the future. However, the DOL has issued a fact sheet and "preliminary interpretations" of the law.

The lawsuit alleges that Saint-Gobain provided Bockoras with rooms that were "either unsanitary or insufficiently private," including "an old locker room that was furnished with nothing but a single chair on a filthy floor with dead bugs." The lawsuit also alleges that Bockoras' coworkers harassed her and that management retaliated against her for complaining about her rights under the FLSA.

Few lawsuits alleging violations of the FLSA's breastfeeding requirements have made it to trial since the provision was signed into law in 2010. In one of the few, a federal appeals court ruled that nursing mothers are not guaranteed the right to express breast milk in the location of their choosing as long as they are given the necessary breaks and provided access to a private place.

Incidentally, Saint-Gobain Containers' sister company, Saint-Gobain Plastics, was the defendant in a 2011 US Supreme Court ruling about FLSA retaliation.