Analysis Law and Policy

No, the Supreme Court Didn’t Reject a Breastfeeding Rights Lawsuit Because Men Can Lactate Too

Jessica Mason Pieklo

In its recent ruling, the high court did leave in place significant hurdles for employees making claims they were forced off the job.

The Roberts Court has issued some ridiculous decisions, particularly on issues pertaining to civil rights. It has held that abortion protesters have a right to harass patients, because that’s called “counseling“; that closely held corporations have a religious right to exclude birth control coverage from employee health insurance plans; and that evidence of the effectiveness of the Voting Rights Act on curbing discriminatory voting laws in places like Alabama was proof it was time to gut the law’s protections. However, it did not, as was widely reported, just hold that discriminating on the basis of lactation can’t be sex discrimination because men can lactate too. Given the procedural hurdles the high court left in place for an employee to clear before successfully making a sex discrimination claim, it might as well have though.

The issue came up in the case of Angela Ames, a former Nationwide Insurance worker. Ames’ story of being denied a place to pump breast milk at work, coerced resignation, and the mind boggling judicial opinion her employment discrimination lawsuit spawned illustrates perfectly how entrenched the problem gender stereotyping in the workplace remains, and how most federal courts appear unwilling to do anything about it.

Ames worked for several years as a loss mitigation specialist for Nationwide. According to the allegations in Ames’ complaint, during her second pregnancy she developed health complications and had to take doctor-ordered bed rest for the remainder of her pregnancy. Ames ended up delivering her second child prematurely in May 2010. According to the complaint, Nationwide initially told her that she could remain on leave until August. But Ames alleges that in June, Nationwide contacted her to tell her that she was entitled to remain on leave under the Family and Medical Leave Act (FMLA) only until mid-July.

The treatment Ames says she received on her first day back is the stuff of employee nightmares. She says that before returning to work, she was assigned a Nationwide disability case manager, who told her she would have access to a lactation room to pump. According to Ames’ complaint, when she showed up to work she was told that in order to use a lactation room she had to complete certain “paperwork” that would allow her the ability to schedule time in the room, and then was told “there was a three-day waiting period while the paperwork was processed.”

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According to Ames’ complaint, by this time her breasts were beginning to swell and she was in increasing pain. Ames claims she was then met by one of her supervisors, who told her she’d have to work overtime to make up for the work she missed while on maternity leave. Ames says she was told she had two weeks to make up the eight weeks of work, or she would face disciplinary action. After meeting with this supervisor, Ames claims she went to see another to help her try and find a place to pump. According to court documents, the supervisor testified that by this time Ames was visibly upset and in tears. Rather than help her find a place to pump, though, the supervisor handed Ames a piece of paper and a pen and told her, “You know, I think it’s best that you go home to be with your babies.” According to Ames, her supervisor then told her what to write on the piece of paper in order to “resign.”

All of this happened within three hours of Ames returning to work.

Ames sued, alleging Nationwide discriminated against her on the basis of her gender and pregnancy, and that the discrimination resulted in her “constructive discharge,” which is a legal term used to describe situations like Ames’, where an employee resigns because of a hostile work environment. Constructive discharge resignations are not voluntary resignations, even if, like in a case like Ames’, there’s a letter that says “I resign.” In other words, if an employee has been constructively discharged, they have been fired.

Not surprisingly, Nationwide disputed Ames’ account of what happened and insisted it did nothing wrong. This created huge factual discrepancies at the lower court between what Ames claims happened when she returned to work and what Nationwide did. For example, Nationwide claimed it had a lactation room available for Ames to use but that Ames didn’t give the company enough of a chance to accommodate her—a claim that, if true, is a direct contradiction to the heart of Ames’ version of the events. Normally when these kinds of key factual discrepancies exist, a judge will rule that the case go to trial to have it all sorted out. Not here.

Instead, a lower court dismissed Ames’ case, ruling that she didn’t take enough steps to complain internally to Nationwide about her discriminatory treatment before writing her resignation letter. The lower court was apparently not concerned by Ames’ claim that her own supervisor was the one who handed her the pen and paper, and then dictated to Ames the terms of her letter. The court seemed to find that irrelevant to the question of whether Ames had followed sufficient protocol in addressing the discrimination Nationwide subjected her to. From there the lower court decision gets worse.

According to the lower court, the supervisor’s comment that Ames should “just go home and be with your babies” was gender-neutral, since both genders can be parents. The court then went on to hold that even if Ames had been fired because she was breastfeeding, that was not sex discrimination, in part because men can lactate under certain circumstances. “Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy,” the lower court wrote.

Ames appealed the trial court’s decision to the Eighth Circuit Court of Appeals, which affirmed the trial court’s dismissal of her case, holding that Ames needed to complain to human resources and follow Nationwide’s internal complaint process first before suing. Ames appealed again to the U.S. Supreme Court, which refused to take her case.

As nonsensical as the lower court’s decision is, it is not without precedent. The lower court’s reasoning in Ames’ case echoes old federal jurisprudence that discriminating against pregnant women at work isn’t really sex discrimination, because both men and women can be non-pregnant. That reasoning was also in part why Congress passed the Pregnancy Discrimination Act. Yet despite decades of workplace advancements, including the Pregnancy Discrimination Act, on-the-job discrimination against breastfeeding mothers is a significant legal problem. In December, the American Civil Liberties Union of Colorado sued on behalf of a woman who claims she was fired for trying to find a place to pump at work. In September 2012, the ACLU of Colorado and the ACLU Women’s Rights Project also negotiated a settlement with a Jefferson County charter school on behalf of Heather Burgbacher, a teacher who lost her job after she requested accommodations to pump breast milk at work. The ACLU of Colorado also worked with DISH Network earlier this year to improve accommodations for nursing mothers at the company’s corporate headquarters, following complaints from employees that the accommodations lacked adequate space and privacy for workers who needed to pump.

Thankfully that reasoning did not make it into the Eight Circuit’s opinion in Ames’ case, which means that the question of whether lactation discrimination is gender discrimination was never before the Roberts Court. By refusing to take Ames’ case, the Court left in place the Eight Circuit ruling that says employees must first navigate the entirety of the corporate complaint process before bringing a lawsuit alleging gender discrimination. I know; that’s cold comfort in a case as egregious as Ames’, and for the countless other women subjected to similar workplace discrimination. These women are effectively victimized twice—first by their employers discriminatory conduct, and then by the federal courts refusal to hear their cases absent proof that these women sufficiently groveled before corporate HR. But, for once, the Roberts Court didn’t make their situation any worse.

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