Employment discrimination against a person based on pregnancy, medical conditions associated with pregnancy, or recent childbirth is prohibited under state and federal law. The question of whether employers are obligated to provide reasonable accommodations for pregnant workers, or workers who have recently given birth, however, remains unsettled in many jurisdictions. The Fair Labor Standards Act (FLSA) requires employers to allow workers who are breastfeeding their newborns to express breast milk at work, a process that requires a sanitary and private environment. This federal statute does not apply to smaller employers, however, and New Jersey has no statute specifically addressing the issue. The termination of a woman from her job earlier this year, allegedly based on her request for additional breaks during the work day to express milk, has brought renewed attention to this issue.
The Americans with Disabilities Act (ADA) of 1990 requires employers to provide “reasonable accommodations” for workers with disabilities. 42 U.S.C. § 12112(b)(5). Pregnancy is not, by itself, considered a disability under the ADA, but the Pregnancy Discrimination Act (PDA) of 1978 prohibits employers from treating a pregnant employee differently from an employee with a comparable temporary disability. A prohibition on discrimination is different, however, from an obligation to accommodate an employee’s condition. The ADA Amendments Act (ADAAA) of 2008 expanded the definition of “disability” to include many conditions commonly associated with pregnancy, to the extent that they “substantially limit a major life activity.” 29 C.F.R. Appendix to § 1630.2(h).
Denying an employee the opportunity to express breast milk while at work does not constitute pregnancy discrimination under the PDA, nor is it a disability for which an employer must make an accommodation under the ADAAA. The Patient Protection and Affordable Care Act (ACA) of 2010 offers some protection. It amended the FLSA to require employers to allow “reasonable break time” for breast milk pumping for up to one year after the child’s birth, and to provide employees with a private location “other than a bathroom” to do so. 29 U.S.C. § 207(r)(1).
Employers are not required to pay employees for time spent on breaks allowed by the ACA. These provisions do not apply to employers with fewer than 50 employees if it would cause an “undue hardship,” such as leaving the employer’s business shorthanded. 29 U.S.C. § 207(r)(3). This potentially leaves a gap in coverage for many New Jersey workers. The New Jersey Law Against Discrimination (NJLAD) expressly prohibits discrimination on the basis of pregnancy, N.J. Rev. Stat. § 10:5-12(a), but state law does not directly address employees’ need to express breast milk.
In August 2015, a New Jersey hotel allegedly fired an employee after she requested several breaks during the day to express breast milk. The employee had gone on maternity leave in March and given birth in May. She was scheduled to return in late August, and had requested two or three 15-to-20-minute breaks during each shift. Her job reportedly required her to be on her feet for almost all of her shift. She claims that the manager told her that accommodating her request would require putting two people on each shift. After several days, she claims that the hotel management told her that no job was available for her. Media coverage does not indicate any direct legal action, but she has received an outpouring of public support.
The pregnancy discrimination attorneys at the Resnick Law Group represent current and former employees and job applicants in New Jersey and New York in claims for employment discrimination and other matters. Contact us today online, at 973-781-1204, or at 646-867-7997, to schedule a confidential consultation.
More Blog Posts:
Pregnancy Now a Protected Class Under New Jersey’s Law Against Discrimination, The New Jersey Employment Law Firm Blog, February 6, 2014
New York Attorney General Announces Settlement Reached in Pregnancy Discrimination and Harassment Lawsuit Against Syracuse Mortuary School, The New Jersey Employment Law Firm Blog, December 6, 2013
Restaurant Settles Pregnancy Discrimination Lawsuit with EEOC, The New Jersey Employment Law Firm Blog, April 3, 2013