Ohio to Nursing Mothers: Get Those Breasts on a Schedule!

If you’re a nursing mother in Ohio and your employer doesn’t allow you time to pump, you might as well quit before you’re fired. Here’s how the Columbus Dispatch reports a decision by the state’s highest court that, at least on its face, would appear to make breastfeeding incompatible with full-time employment if you’ve got an unsympathetic boss:

A Cincinnati-area company didn’t discriminate against a new mother when it fired her for taking unauthorized breaks to pump milk from her breasts, the Ohio Supreme Court ruled this morning.

Totes/Isotoner, an outerwear manufacturer in West Chester, did not violate Ohio’s pregnancy-discrimination law by firing general laborer LaNisa Allen for taking lactation breaks four hours into her shift.

Allen argued that her breasts ached five hours into her shift, when she was allowed a lunch break.

The court, however, said Totes/Isotoner was within its rights to fire Allen for “failure to follow directions.”

Justice Paul E. Pfeifer dissented, and Justice Judith Ann Lanzinger said the Supreme Court should not have taken the case.

In an unsigned opinion, the court said Allen’s status as a lactating mother isn’t relevant to the dispute.

“In this case, the evidence in the record demonstrates that Allen took unauthorized breaks from her workstation, and Isotoner discharged her for doing so,” the court wrote.

“Thus, the record as it was developed in the trial court fails to provide a basis from which a jury could conclude that Isotoner’s articulated legitimate, nondiscriminatory reason for Allen’s termination — failure to follow directions – was a pretext for discrimination based on Allen’s pregnancy or a condition related to her pregnancy.”

(I quoted the whole Dispatch article so as not to distort the sparse information on the case.)

With the usual caveat that I’m no lawyer, the outcome of this case appalls me. How is “failure to follow directions” even an issue when one’s body is threatening to leak all over one’s workspace? Imagine if the employee in question had an attack of diarrhea. Or if she’d had to throw up. I’m not equating breastmilk with poop or puke (sorry for those icky images) but beyond a certain point, one has equally little control over it. Would Allen have been fired if she’d urgently needed to go to the bathroom? Would her supervisor have denied her that “privilege”?

Of course, “failure to follow directions” is only an issue because – as far as I can see from this brief news report – the employer did not make any allowance for breastfeeding. No nursing mother should have to go five hours between pumping. I remember often being in significant pain after just three.

Waiting too long to pump ups the risk for mastitis, which is a seriously painful infection. Over the long run, it will likely diminish her milk supply. And as any woman who’s leaked milk can attest, having a big wet bulls’ eye in the middle of each breast is always a little embarrassing, even though it really shouldn’t be. (I still recall what I was wearing when I had an epic leak while shopping one day in Berlin – a skinny long-sleeved purple T-shirt – and I didn’t even see anyone I knew except for my husband and baby.)

Weird judicial decisions like this one, which may have a legal basis but no connection to reality, show that a “gender-blind” application of the law will sometimes result in enormously sexist rulings. Maybe someday, humans will reproduce asexually, like starfish. Until then, the plaintiff’s status as a lactating mother is irrelevant only if the law willfully ignores mothers’ needs and embodied experiences.

Obviously, we can’t rely on existing law to recognize breastfeeding as a predictable consequence of pregnancy. Hey, even childbirth isn’t inevitable – you can always abort! Somehow, I don’t think that line of reasoning would fly in the Ohio legislature. But the plaintiff’s lawyers should never have had to argue that lactation is part of pregnancy; even though the postpartum period can reasonably seen as a fourth trimester, it’s predictable that not all judges will folllow that logic.

It’s time for Ohio to pass a law that would specifically protect the rights of nursing mothers who are trying to balance paid work and infant care. Currently, to the best of my knowledge, the only part of Ohio’s Revised Code that mentions breastfeeding protects the right of women to feed their babies in public. It says nothing about the workplace. But guess what? Guaranteed pumping/nursing breaks wouldn’t even necessarily impair productivity. Most new mothers can work better when they’re not distracted by boobs that ache and threaten to give new meaning to the slogan “got milk.”

Update 8/28/09, 10:30 a.m.: Here’s some good news and some bad news on this issue. First the bad: As Gina points out in comments, in Ohio you could in fact be fired for going to the bathroom while at work. Ohio law does not guarantee that workers can take any sorts of breaks, unless they’re under 18 years of age.

The good news is that a proposed federal law, the Breastfeeding Promotion Act, would expand the definition of sex discrimination to include lactation and mandate breaks for lactating employees with a child under the age of one. It would also require employers to make “reasonable efforts” to supply a private place to pump other than the bathroom. Here’s where you can read more about the BPA and express your support to your congresscritters.

See the Ohio Employer’s Law Blog for commentary on the legal reasoning behind the Ohio Supreme Court’s ruling.