Tuesday, March 23, 2010

Do we really need to pump up workplace lactation rights?

Philly.com ran a story last week by Philadelphia attorney Beth Thorne, who recounted her lack of privacy at work to express breast milk. Ohio, like Pennsylvania, is in the majority of states that do not have a law that requires employers to accommodate lactating moms. Some Ohio legislators want to change this omission.

A bill has been drafted – but not yet introduced – that would amend Ohio’s discrimination statute to include “lactation” as a protected class. This law would expand the prohibition against discrimination because of or on the basis of sex to include discrimination because of or on the basis of lactation. It would also require employers to provide lactating employees “reasonable, unpaid time each day” for the expression of breast milk, and further require employers to make a reasonable effort to provide a sanitary room or area (other than a toilet stall) for this purpose.

While this law is noble in purpose, I question whether it is needed in the first place.

  • Ohio’s law against sex discrimination likely already covers lactation. In Allen v. totes/Isotoner Corp., two of the most conservative justices of the Ohio Supreme Court concurred that lactation is covered by Ohio’s proscriptions against employment discrimination on the basis of sex/pregnancy. While the majority dodged this issue, the Court gave clear direction of how it rule if the issue arose again. We should not be in the business of unnecessarily amending laws.

  • Is this really a problem that needs to be fixed? Are lactating employees really being denied the opportunity to pump? The empirical evidence would suggest that the answer is no. In my 13 year career I’ve never come across the issue. LEXIS reveals scant few cases on this topic, even in jurisdictions that have workplace lactation laws. So, if this is not a problem that needs correction, what reasons – other than placating certain special interests – call for the passage of workplace lactation legislation?

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.