Sixth Circuit Rejects Lactation Retaliation and Hostile Work Environment Claims

 Last week, the Sixth Circuit affirmed a school employer’s summary judgment on a retaliation and harassment claim brought by a non-renewed special education teacher who had alleged that she was terminated in retaliation for taking lactation breaks.  Childers v. Casey County School District Board of Education, No. 23-5317 (6^th Cir. Aug. 1, 2024).   Although she brought the claims under Title IX and Kentucky state law, the Court applied Title VII burdens of proof to find that the employer’s explanation -- her failure to timely submit forms to fund a student’s education -- was not pretextual in light of the sporadic and stale allegations in her complaint. 

According to the Court’s opinion, the plaintiff was a contract special education teacher.  A new student was added during her maternity leave, but she failed to complete his enrollment verification form after she returned even though she was aware that his forms had not been properly completed or submitted for federal funding.  She and the Principal had agreed that she could use her locked classroom for lactation breaks and put a cover on the door.   When she returned from leave, the Special Education Director objected to the amount of paid time she intended to spend each day without seeing students: 60 minutes for planning, 60 minutes for lactation and 20 minutes for lunch.  She did not adjust her schedule.   Over the next six months, someone inadvertently entered her room during her lactation breaks on three separate occasions.  The Principal also asked her one time to remove the cover from her door for a safety audit, but she refused to do so.   For her performance evaluation, she was free to add examples of her students’ work, but she failed to do so.  She was evaluated as “developing” in part because the school lost funding for the new student for whom she had failed to timely submit a required form.  She appealed the evaluation, but it was affirmed and her contract was not renewed.

The Court found that the teacher failed to show that her poor performance evaluation was pretext for discrimination or retaliation.  While she agreed that the new student’s form was ultimately her responsibility and she had sufficient time to complete it, she attempted to shift the blame to others.   She also failed to show that the Special Education Director or his outburst six months earlier about her work schedule played any role the decision to not renew her contract.    Finally, she could not show pretext when she herself chose what was placed in her folder, not the Principal.

The Court also found insufficient evidence of a hostile work environment based on five sporadic incidents over a six month period.

While we are sympathetic to [the plaintiff’s] privacy concerns, these episodes are insufficient to raise an actionable hostile work environment claim. [She] acknowledged that she did not think that the janitors entered her classroom purposefully, which diminishes the severity of the intrusions. . . . The infrequency of the privacy violations, including the alleged removal of her window cover, demonstrates that [her] allegations are the types of “isolated incidents” that are legally insufficient to state a hostile work environment claim. . . . And [the Director’s] challenges to and frustrations with her draft schedule were not frequent, severe, physically threatening, or humiliating; at most, they constituted “mere offensive utterance[s].”

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. 

Unpaid Breastfeeding Breaks Now Mandated by FLSA Per the Patient Protection and Affordable Care Act

As some of you may recall from my August 27, 2009 post at Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore, the Ohio Supreme Court ruled that employers were not required to provide breaks to new lactating mothers. However, the Patient Protection and Affordable Care Act signed last week by President Obama changed that for Ohio and other employers subject to the FLSA. Among other things, the PPACA amends the FLSA to provide that employers must provide an unpaid break for mothers to express breast milk for one year after the birth of the child in a location (other than a restroom) that is shielded from view and intrusion by the public or coworkers. There is an exception for small employers (with fewer than 50 employees) who can show an undue hardship by the significant difficulty or expense of providing such beaks considering the employer’s size, financial resources, nature or structure.

There is no “official” website for the text of the PPACA yet, but the text of Section 4207 of the PPACA (as reflected by the Senate bill later passed by the House and signed by the President) provides as follows:

Section 4207. Reasonable Break Time for Nursing Mothers.

Section 7 of the Fair Labor Standards Act of 19389 (29 U.S.C. § 207) is amended by adding at the end of the following: “(r)
(1) An employer shall provide –
(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth; and
(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.
(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.

A summary of the Public Law 111-148 is available on the Library of Congress website.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Lactation Discrimination in Ohio: Toto: We’re Not In Kansas Anymore.

This morning, the Ohio Supreme Court issued a decision which had initially promised to decide whether Ohio law prohibited an employer from discriminating against an employee who was lactating. However, the per curiam decision (i.e., non-binding authority) remarkably avoided that issue altogether and, instead, affirmed an employer’s right to fire an employee for insubordination when the employee admittedly took unauthorized breaks without the employer’s knowledge or consent. Allen v. Totes/Isotoner Corp., Slip Opinion No. 2009-Ohio-4231. The Court’s action might not have raised an eyebrow if it were not for the facts of the case and that many people in Ohio have watched the oral argument previously broadcast on the Ohio Channel (which is part of PBS).

By way of background, after returning to work following her maternity leave, the plaintiff requested her supervisor for breaks to pump her breast milk to feed her five-month old infant. The employer apparently told her that she could do so during her regular lunch break. Employees were otherwise forbidden to take breaks unless they needed to urinate, etc. The plaintiff decided that her breasts needed pumped more often or later in the morning than her regular break schedule permitted and so, without her supervisor’s knowledge or consent, she began taking an extra break later in the morning to use the breast pump. The supervisor found out and fired her for failing to follow directions. There was some factual dispute about whether the plaintiff ever notified the employer that its prior arrangement was unsuitable before she added or rescheduled her own rest break.

When the plaintiff brought claims for wrongful discharge under the Ohio Pregnancy Discrimination Act, the trial court granted summary judgment to the employer on the grounds that lactation five months after child birth is not related to pregnancy because lactation would have stopped in the natural course of events if the employee had decided not to breast feed her baby. (In his mind, the fact that she was lactating five months later was related to her decision to breast feed and not to her pregnancy). This was important because pregnancy is covered by statute and breastfeeding is not. The Court of Appeals affirmed, but only on the grounds that she did not satisfy her prima facie case and an employer may legitimately fire an employee for taking an unauthorized rest break.

As mentioned, a majority of the Supreme Court could not agree on a basis to affirm or reverse the judgment. While a majority could agree on affirming the judgment, they could not agree why. Most of the majority apparently agreed that it was non-discriminatory to fire an employee for taking unauthorized rest breaks. However, they could not agree whether the act of using a breast pump put the plaintiff into a protected status under the Pregnancy Discrimination Act and refused to address the issue at all on the disingenuous rationale that it would constitute an advisory opinion.

Surprisingly, both Chief Justice Moyer and Justice O’Connor agreed that lactation should be a covered activity under the Pregnancy Discrimination Act. As Justice O’Connor noted in her opinion, the relevant Ohio statute includes as sex discrimination any action taken “because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes * * *.” R.C. 4112.01(B).” The oral argument in this case spent most of the debate focusing on this language. Finding no legal support for her position in any federal court decision on the issue (even though she acknowledged that the Ohio statutory language quotes the federal Pregnancy Discrimination Act verbatim) and even though a number of states have passed specific breastfeeding protection statutes to address the lapse, she decided it was beyond dispute that Ohio’s statute covered breastfeeding.

However, both Moyer and O’Conner felt that the plaintiff was asking for preferential treatment by taking an extra break to pump breast milk, and thus, could be fired like any other employee for taking an unauthorized rest break. They do not believe that Ohio law requires employers to give breastfeeding/breastpump breaks to employees. Unlike the ADA, the federal PDA does not require preferential treatment or reasonable accommodation for pregnant women. (Ohio law, on the other hand, mandates a reasonable maternity leave even when an employer does not provide any medial leave). On a strict comparative basis analysis, the plaintiff did not show that she was fired for engaging in the same conduct as others because no one else was taking an extra fifteen-minute break each day to pump breast mile (or any other reason). While I agree that an employee who takes surreptitious breaks or violates her supervisor’s direct order has been insubordinate, I am not certain that this issue is so simple since there seemed to be a factual dispute about whether the employee was treated differently on account of her breastfeeding break or whether Ohio law requires some sort of reasonable accommodation (assuming, of course, that lactating is covered by the PDA, which I do not think it is).

Justice Pfeifer agreed that the plaintiff’s lactating was covered by the Pregnancy Discrimination Act, but felt that the plaintiff was discriminated against because she was fired for taking a rest break for the purpose of pumping breast milk, but admittedly would not have been fired if she had taken the same rest break in order to urinate. While this rationale has its benefits, is an employer required to treat breastfeeding the same as urination? If so, would employers then have an incentive to ban urination breaks? Is that a world in which we want to live? Are there time limits on either (how long you have to urinate vs pump breast milk)? Is it relevant that she may never have told the employer that its prior arrangement was insufficient? Does the employee get to decide for herself when she gets to take a break and how often or does she have to work that out first with her employer?

In any event, Isotoner now finds itself in the unenviable position of manufacturing a product (i.e., fashion gloves, slippers and umbrellas) to women who it will not permit to take a daily fifteen minute break to pump breast milk for suckling infants. Ohio employers are left unsure whether a future court decision will address this question or whether the Ohio legislature will eventually take it up. For now, there is no law in Ohio giving women the right to take breaks to pump breast milk for their infants.

Insomniacs can read the full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-4231.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.