Monday, February 9, 2015

Lactation in Court: Your Rights at Risk (and One Case to Watch)

Last week, I was directed to a headline that read, "Supreme Court lets stand ruling that firing woman for breastfeeding not sexist because men can lactate." I immediately thought "that doesn't sound right," and set off to investigate. The heavy partisan bias of the site and the lack of sources induced further skepticism, but I felt that such a claim must have originated somewhere, so I followed my diligently-Googling fingers to an ACLU blog post that had been heavily quoted in the first article. The headline was likewise sensational: "Firing a mom because she's breastfeeding is sex discrimination." Again, the ACLU post referenced the court's supposed claim that lactation is not unique to women (more on that in a minute), but again, no sources for this opinion were provided. What's more, the original headline of the first article has since been changed, possibly in response to a Snopes article that points out the misleading language.

What WAS certain was that a breastfeeding woman had lost her job, the circumstances pointed to possible discrimination, and a petition appealing the case had been submitted to and denied by the Supreme Court. Given the massive consequences this could have for breastfeeding mothers, really ALL mothers, I jumped down the rabbit hole to find the truth.

Don't start raging yet. Soon, I promise, I will give you a reason. Probably not the reason you think, though.

The Case: Ames v. Nationwide

First, a quick overview of the case, Ames v. Nationwide (yes, that Nationwide):

Angela Ames was a Nationwide Insurance employee who gave birth to her first child after seven months at her job, and discovered her second pregnancy five months after that. At this point, she claims she became the target of mocking and derogatory comments from her direct supervisor, Brian Brinks, and the head of her department, Karla Neel, regarding the intended length of her maternity leave, her weight and appearance, and her medical need to go on bed rest as a result of a difficult pregnancy.

Ames's second child was born prematurely, and during her maternity leave, Neel called to inform her that the length of her leave had been miscalculated, and she would need to return to work sooner than originally planned. Though further unpaid leave was available to Ames, Neel suggested this would send up "red flags," and offered a compromise of an extra week beyond paid leave. Ames, who was breastfeeding, called a disability case manager to ask about available pumping facilities, and was told that lactation rooms were available.

Upon her return to work, Ames needed to pump, and sought out the lactation room. After receiving an indifferent response from Neel, she was directed to the company nurse, who informed her that she needed to fill out paperwork that would take three days to process before she could be permitted access to the lactation rooms. Since Ames had not pumped in hours and was in considerable pain, the nurse offered an alternative room, but it was not immediately available and did not comply with federal guidelines for a suitable pumping space.

While waiting for an available room, Ames met with Brinks, and claims he told her that none of her work had been completed while she was on leave and that she was responsible for completing all of it within two weeks, even if that required overtime and at the risk of official discipline if not finished. Now fearing for her job and in even more pain because she still had not pumped, a visibly distraught Ames again sought out Neel for help. Neel then handed her a pen and paper, saying, "You know, I think it's best that you go home to be with your babies," and dictated a resignation letter to Ames, instructing her to sign it.

As a result, Ames brought suit charging sex and pregnancy discrimination, and later a claim of constructive discharge, on which much of her case depended. Constructive discharge means a forced resignation, usually because working conditions are made deliberately intolerable with the intent of causing an employee to quit rather than be terminated.

How is the Supreme Court involved?

Second, a grossly-oversimplified layperson's explanation of the case's route to the Supreme Court:

The case was initially tried in District Court in Iowa, where the events occurred. This trial court ruled against Ames, with two primary arguments: one, that she was unable to prove that she was treated at all uniquely for being a woman (particularly a mother and lactating woman), and two, that she did not adequately seek available redress prior to her resignation, as a "reasonable person" would. It was in the footnotes of this court opinion that the odd reference to lactating men was included, to support the assertion that lactation is not a sex-based condition and therefore could not prompt sex discrimination.

Next, Ames appealed the decision, taking it to the Eighth Circuit court. This appellate court affirmed the decision of the district court, but did NOT reference any of the more outrageous claims found in the original opinion, including the men-can-lactate-too argument. However, the decision of this court carries considerable weight, as its ruling is now binding for the entire Eighth Circuit, and may be referenced as precedent in cases before other circuit courts.

Now gaining the support of the ACLU (in an excellent little brief, I might add: well-worth the read), Ames petitioned the Supreme Court for a review of the case. Her attorneys sought this both for an appeal of the ruling and because several of the Eighth Circuit's opinions regarding constructive discharge conflict directly with readings by the other circuit courts, meaning only the Supreme Court can settle the dispute. The Court denied the petition, which means they will not hear arguments at all and there are no further avenues for appeal available to Ames. However, this does NOT mean that the Supreme Court has affirmed the circuit court's ruling as the Eighth Circuit did, and its denial should not be taken as approval of or agreement with any arguments made by Nationwide.

"Reasonable persons" and lactation as a choice

Is this fair? Are these bad rulings? Were Ames's rights infringed?

It's hard to say, because lawyers are good at what they do and, with scruples or without them, they can make a case. Even as a legal-illiterate, I can follow the logic that led to this outcome. But I can also see an equally logical path to the opposite conclusion. Some context that I think was overlooked:

The courts made much of Ames's failure to report her harassment and ill treatment to HR as a "reasonable person" would, citing that as their primary reason to reject her claim of constructive discharge:

"The Court is not insensitive to the burdens and stresses associated with parenthood, particularly those experienced by new mothers. Being under stress, however, does not excuse Ames from doing what any reasonable person in her position would have done. Therefore, the Court concludes that no reasonable fact-finder would determine that the unavailability of a lactation room on July 19, 2010 would lead a reasonable employee in Ames’s position to believe that her only option was to resign."
This ignores several important points:

One, that Ames had been a victim of a sustained campaign of harassment and intimidation throughout her pregnancy, both from her direct supervisor and from the department head. As it was a physically challenging pregnancy, Ames would have been suffering from physical discomfort, fear for her unborn child, the need for constant medical care that would interfere with her work, the mockery of colleagues and superiors, and of course fear for her job. Also, she already had a baby at home, and though other stressors are not cited in the court documents, it is also possible that her health insurance and her family's financial stability depended at least in part on her job with Nationwide. Any of these factors, combined with pregnancy and postpartum hormones, could easily and understandably make Ames less reasonable than she might be otherwise.

Second, Neel demonstrated a clear pattern of manipulation in her behavior toward Ames: First came her comments that were evidently intended to make Ames feel guilty for her need to go on bed rest during her pregnancy. Then, when she called to let Ames know that her maternity leave had been miscalculated and she would need to return to work earlier than originally planned, she made threats to Ames' job should she choose to take a longer unpaid leave. After thus putting her on the defensive, she then magnanimously offered an extra week of leave to Ames, assuring that Ames would return to work both fearful for her position and indebted to Neel for her apparent graciousness. Finally, it was Neel who suggested Ames resign and who offered her the pen and paper and dictated her resignation letter to her.

Third, though there are several references to Ames's "considerable pain" or discomfort of engorgement from going so long without pumping, it is very clear that no one who ruled on this case has any idea what that feels like. While of course judges are called upon to be as objective as possible in their rulings, the physical sensations Ames was experiencing, coupled with her extreme fear for her job that had been systematically instilled by her superiors, would have seriously affected her ability to make considered decisions. Engorgement can be agonizing, tortuous even. If you were in terrible pain, and someone offered you a pen and paper that would bring you relief within the hour, would you choose that, or wait hours longer to attempt to resolve the problem "reasonably," even knowing you might be unsuccessful? Of course not: you would take whatever option would allow you to end your pain sooner, and to expect otherwise is ludicrous.

Furthermore, the courts seem unable to understand why Ames could not simply wait the three days required for her paperwork to use the lactation room. As mentioned above, it would be extremely painful and very distracting to her, making it difficult to do her job. Remember, she had just been informed that she needed to complete eight weeks worth of work in only two, after months of harassment and direct threats to her job from Neel. She knew she couldn't afford to be distracted. Moreover, having to go three days without pumping would likely lead to early breastfeeding cessation for Ames, since lactation is a supply-and-demand system. The courts surely don't care since, in the judges' minds, there's always formula, but this shows a clear bias against breastfeeding women. They expected Ames, as a "reasonable person," to simply stop breastfeeding if that was what was necessary to keep her job, even though federal pumping laws were written to prevent exactly that.

Indeed, the rulings define lactation as a "choice," and not as a medical condition associated with pregnancy. Despite the fact that lactation is a natural biological feature of pregnancy and birth, even for unfortunate women whose babies do not survive, the fact that its continuation requires effort apparently disqualifies breastfeeding as a medical condition. No protections for it are therefore recognized. In fact, the court documents even mention that because federal pumping laws include no provision for enforcement, the law is essentially invalid.

What does it mean for me?

So, that's where we've landed with this case: regardless of whether these particular rulings were correct, there is now a strong precedent in favor of employers who do not support breastfeeding mothers. Employers like Nationwide can exploit the physical and psychological condition of mothers like Ames, set unreasonable expectations for their use of lactation resources, and if they happen to overstep federal pumping laws, it's no big deal because those laws have no teeth anyway. While the headlines concerning this case are grossly misleading, it's absolutely true that the outcome of this case could have tangible negative effects on breastfeeding moms.

One last thing: there is a related case that ALL MOMS should follow for the effect that it might have on us. In Young v. United Parcel Service, a woman is suing because her doctor ordered a weight-lifting restriction during her pregnancy, but UPS did not honor it and demanded that she continue with the same duties as before. She refused, so she spent much of her pregnancy out of work, and ended up losing her insurance coverage. The Supreme Court DID take this case, and is currently deciding whether pregnancy and related conditions can be classified as temporary disabilities and accommodated accordingly, or whether mothers being treated as equals means they must perform the same work they would do if they were not pregnant. Since the status of lactation as a pregnancy-related condition is still in question, it could potentially fall under whatever ruling the Supreme Court makes. The outcome of this case will have significant consequences for working mothers, so keep an eye on it!

As always, we welcome your comments! Do you think the ruling in favor of Nationwide was fair?

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