Men can lactate too: breastfeeding mom loses discrimination case

No discrimination where breastfeeding mother feels forced out of her job

Photo by Jenny Bradford (Flickr)

In Ames v. Nationwide Mutual Insurance Company, the Supreme Court of the United States reaffirmed that having a baby continues to be a precarious economic and professional choice for women.  The court upheld a decision by The United States Court of Appeals for the Eighth Circuit, ruling against a breastfeeding mother who felt pushed out of her job.  Angela Ames was denied a place to pump breast milk when she returned from maternity leave and subsequently felt coerced to resign by her supervisor.

The hurdles of proving a sex discrimination case  

Ames filed a discrimination suit against her employer, Nationwide Insurance, in late 2012.  The claim for sex discrimination was filed under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex.  Sex-based discrimination under Title VII includes discrimination based on “pregnancy, childbirth, or related medical conditions.”

An employee’s claim for sex discrimination must survive summary judgment in order to move forward, and this can be accomplished in one of two ways.  First, the employee may produce direct evidence that demonstrates a specific link between the discriminatory intent and the adverse employment action, such as termination, that was taken by the employer.

If no direct evidence exists the employee may create an inference of discrimination under what is known as the McDonnell-Douglas framework.  Under the framework the employer must show that: (1) she is a member of a protected group; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that were likely attributed to discrimination.

Second, since Ames was not actually fired by her employer, she had to prove that there was a constructive discharge.  To prove this an employee must show that the “employer deliberately created intolerable working conditions with the intention of forcing her to quit.”  An employee must also show that she gave her employer a reasonable opportunity to resolve the problem before actually quitting.

“Just go home to be with your babies”

In review of the trial court’s decision, the Court of Appeals upheld the lower court’s finding that Ames was not constructively discharged.  The court based this on Nationwide’s several attempts to maintain an employment relationship with Ames.  The employer’s apparent willingness to accommodate Ames undercut her claim of constructive discharge.

Furthermore, the court states that Ames’ supervisor communicated his expectations of her which were not unreasonable.  The court found that Nationwide’s policies treat all nursing mothers alike, thus demonstrating that it did not intend to force Ames to resign when it sought to enforce these policies.

The court specifically addressed a comment made to Ames by one of her supervisors.  This supervisor did not assist Ames in finding a place to lactate and instead told her, “I think it’s best that you go home to be with your babies.”

The trial court found this comment made by Ames’ supervisor to be gender-neutral.  The Court of Appeals stated that even if this comment could support a finding of intent to force her to resign, Ames’ constructive discharge claim still fails because she did not give Nationwide a reasonable opportunity to address the issue.

Ames petitioned the Supreme Court of the United States, but the court ultimately denied her request in January.

Does it matter if men can lactate too?

Part of the trial court’s reasoning was, according to Galen Sherwin of the American Civil Liberties Union (ACLU), “that even if Angela had been fired because she was breastfeeding, that was not sex discrimination, in part because men can lactate under certain circumstances.”

This reasoning is used to defeat Ames attempt to demonstrate that she was a member of a protected class and suffered an adverse employment action due to discrimination based on her membership in this class.  Breastfeeding mothers are not seen as being in a protected class based on sex, because men can also lactate.

In her ACLU blog post Sherwin concedes that it is important to acknowledge that some men can and do lactate.  Even so, “firing someone because they are breastfeeding is still a form of sex discrimination, and one that is frequently experienced by new mothers.”

Sherwin compares the court’s reasoning to an outdated Supreme Court assertion that discriminating against women at work is not sex discrimination because both men and women can be non-pregnant.  Congress rejected this reasoning when it passed the Pregnancy Discrimination Act.  The question after the Ames decision is whether this line of reasoning is reemerging.

Continued stereotypes of mothers in the workplace

The treatment Ames received when she returned to work from maternity leave is now a definite fear of many working moms.

In Ames’ case she ran up against workplace policies that did not work in accordance with the realities of pregnancy and motherhood.  She was denied access to a lactation room without paperwork.  Although she reached out to her department for help the court found that she didn’t fight hard enough to keep her job.  Many new working moms may have to face this same battle.

This case also reaffirmed employers’ entrenched sex stereotypes.  The classification of Ames’ supervisor’s comment as gender neutral allows for explicit expression of the stereotype that women belong at home with their children or may be less capable of completing their work after having children.

An alternate shield for breastfeeding mothers

Interestingly, employees like Ames are now protected under the Patient Protection and Affordable Care Act (PPACA) in regards to a lactation room.  In 2010, after Ames faced discrimination and was denied a place to lactate, the PPACA amended the Fair Labor Standards Act (FLSA).  Essentially, under PPACA and the amended Section 7 of FLSA, employers like Nationwide are required to provide a “reasonable break time” for mothers nursing a child for 1 year after birth.  Nationwide would have also been required to provide a place for lactation, and a bathroom is not sufficient.

As far as the other claims raised by Ames, it seems for now the Supreme Court will not find “special” protections for mothers.

Hannah Emory, Associate Editor
About Hannah Emory, Associate Editor (15 Articles)
Hannah Emory is a Campbell Law graduate and served as an Associate Editor for the Campbell Law Observer for the 2015-2016 academic year. She is originally from Dunn, North Carolina and graduated from the University of North Carolina at Chapel Hill in 2013 with a Bachelor of Arts in Political Science and History. Following her first year of law school, Hannah interned at the North Carolina Office of the Juvenile Defender.
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