Court Rules on Breastfeeding Discrimination: Men Can Lactate, Too

News: Articles report a woman's breastfeeding discrimination lawsuit was without merit because men can lactate as well.

Published Feb 4, 2015

On 3 February 2015, the website RawStory published an article titled "Supreme Court lets stand ruling that firing woman for breastfeeding not sexist since men can lactate." The article reported the Supreme Court had declined to hear a petition regarding a discrimination lawsuit
a breastfeeding mother had brought against her employer, and it stated the original trial court's dismissal of the lawsuit (which was upheld in appellate court)

was based on the notion "breastfeeding-related firings aren't sexist because men can lactate, too." Although the original District Court ruling in October 2012 that dismissed the lawsuit did include reference to lactating men, that was not the primary basis for the court's decision, nor was it a factor mentioned at all in the March 2014 ruling of the St. Louis-based Eighth Circuit Court of Appeals that upheld the District Court's dismissal.

The case in question involved a dispute between Angela Ames and her employer, Nationwide Insurance, with the plaintiff asserting the company denied her a room to pump breast milk and pressured to resign on her first day back from maternity leave. The appellate court upheld a lower court's ruling she "did not meet the legal burden of showing she was treated so badly that any reasonable person would have resigned" and denied her a chance to take her claims of gender and pregnancy discrimination to trial.

On 2 February 2015, a post on the American Civil Liberties Union blog made reference to the notion the trial court had rules "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":

A few months ago, I posted about Angela Ames, the Nationwide Insurance worker who alleged that she was denied a place to pump breast milk when she returned to work from maternity leave. When she protested, Angela was coerced into resigning by her supervisor, who told her she should "just go home and be with your babies".

Last week, the Supreme Court sent her the same message — go home — rejecting her petition for a review of the dismissal of her case. The denial of her petition effectively means the end of the line for her case.

The courts dismissed Angela's case saying that she didn't take sufficient steps to complain internally before writing her letter of resignation — even though her own supervisor was the one who handed her the pen and dictated what to write — and therefore, she wasn't really fired. The courts found it irrelevant that Angela was supposed to take these additional steps while engorged and waiting for a pumping room that her employer told her wouldn't be available for several days.

The trial court also held, nonsensically, 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.

It's certainly important to acknowledge that some men (including some trans men) can and do lactate. But it should also be self-evident that firing someone because they are breastfeeding is still a form of sex discrimination, and one that is all-too-frequently experienced by new mothers. The court's reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn't sex discrimination because both men and women can be non-pregnant. Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It's disheartening to see it resurface again.

The original 16 October 2012 decision issued by Iowa's Southern District court in favor of Nationwide examined, as one element of the case, whether Ames could sufficiently prove lactation alone constituted a medical condition affecting what she alleged was a constructive discharge loss of employment. The ability of individuals other than post-partum mothers to lactate was indeed addressed for the purposes of establishing whether discrimination had occurred based on the plaintiff's inclusion in a protected class (i.e., lactating mothers) and whether lactation was indeed a medical condition related to Ames' pregnancy. But in order to succeed in her argument, Ames had to overcome the precedent that "several courts have considered and rejected the argument that terminating an employee due to lactation is gender or pregnancy discrimination," so to dispute the soundness of those previous cases' legal analyses Ames cited Falk v. City of Glendale, a decision that provided an overview of existing case law surrounding lactation and summarized that:

As it stands, no existing case law correctly excludes lactation or other conditions experienced by the mother as a result of breast-feeding from Title VII protection under the PDA [Pregnancy Discrimination Act]. A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered.

What the trial court stated, in reference to that aspect of the case, was the plaintiff had not sufficiently demonstrated "lactation is a medical condition [exclusively] related to pregnancy," citing as one counter-example (among others) men "have milk ducts and the hormones responsible for milk production":

Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, "lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy." Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

Strangely, the court didn't actually state "men can lactate, too"; it merely cited the fact men also possess the physiological elements necessary for the production of milk. It certainly implied as much, however, by citing a 2007 Scientific American article titled "Strange but True: Males Can Lactate," although even that article noted a typical man could lactate only under unusual conditions (e.g., through side effects of certain medications that affect the pituitary gland, or by being on the brink of starvation).

Whatever one might think of the trial court's decision, it is misleading to assert its ruling hinged solely or primarily on the notion "breastfeeding-related firings aren't sexist because men can lactate, too." Even if the court had never referenced male lactation, it would still have made its point that lactation is not a medical condition exclusively related to pregnancy by observing women who have not experienced a recent birth or pregnancy can also lactate.

Moreover, the appellate court's decision to uphold the trial court's dismissal of the lawsuit made no mention of lactating men, nor of the issue of whether lactation is a medical condition related to pregnancy. It upheld the dismissal on several other grounds, among them evidence indicated Ames' employer did not intend to pressure her into quitting and had made reasonable attempts to accommodate her needs rather than discriminating against her:

Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit. Although Nationwide incorrectly calculated [the expiration date of] Ames's [Family and Medical Leave Act] leave, it made efforts to ameliorate the impact of its mistake. [Department head Karla] Neel did not discourage Ames from taking the FMLA leave to which Ames was entitled. Furthermore, even though Neel discouraged Ames from taking unpaid leave up to August, Neel gave
Ames an extra week of maternity leave, which gave Ames more than thirty days to prepare for her return to work. Rather than intentionally rendering Ames's
work conditions intolerable, the record shows that Nationwide sought to accommodate Ames's needs.

Moreover, Ames was denied immediate access to a lactation room only because she had not completed the paperwork to gain badge access. Every nursing
mother was required to complete the same paperwork and was subjected to the same three-day waiting period. Further, [company nurse Sara] Hallberg tried to accommodate Ames
by allowing her to use a wellness room as soon as it was available and by requesting that Ames receive expedited access to the lactation rooms.

[Ames] did not give Nationwide a reasonable opportunity to address and ameliorate the conditions that she claims constituted a constructive discharge. The only way in which Ames attempted to alert Nationwide to the problem was by asking Neel twice about obtaining a lactation room and by approaching Hallberg about the same problem, all on the morning that Ames resigned. Moreover, when Ames approached Hallberg about the problem, Hallberg suggested to Ames a temporary solution. Although this solution may not have been immediately available or ideal, Ames had an obligation not to jump to the conclusion that the attempt would not work and that her only reasonable option was to resign.

So while the original court may have referenced the issue of male lactation, headlines asserting the case turned on the issue that "breastfeeding is not sexist since men can lactate" are inaccurate, and they create a grossly misleading impression based upon one very minor element of a single aspect of the case. The courts ultimately deemed Ames did not meet the burden of proof to proceed with a claim of sex or pregnancy-based discrimination, and the ruling did not hinge on whether men can lactate: both the 2012 opinion issued by an Iowa district court and the 2014 appellate decision to uphold the earlier ruling found Ames did not allow time for her employer to address the requested accommodations before she resigned. Furthermore, the original decision observed "Ames [admitted] that the lactation policy was readily available to her on the company intranet and that she could have, but did not, ask [a supervisor] any questions regarding the policy" before seeking to access accommodations under it.

Last updated:   4 February 2015

David Mikkelson founded the site now known as back in 1994.

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