Harassment And Breastfeeding Accommodations For Staff

The U.S. Navy will pay $50,000 to settle a lawsuit brought by a former employee who alleged her employers failed to accommodate her need to breastfeed her infant and subjected her to months of sexual harassment.

The plaintiff began working as a supply technician at the Marine Corps Logistics Base in Barstow, California in July 2014. She was jointly employed by both the U.S. Navy and a contractor, AECOM Inc.

The plaintiff alleged the employers "failed and refused to provide a private, sanitary, uninterrupted setting" in which she "could pump breastmilk, during the workday, in order to feed her infant child."

She also claimed that both supervisors and coworkers subjected her to "near daily harassment" during the four months she tried to pump her breastmilk at work. For example, two supervisors allegedly said to her: "Your boobs are looking a little big, better go pump"; "You do one and I'll do the other"; "How many times do you have to do this?"; and "Can I get milk with my coffee?"

The plaintiff alleged that the failure to accommodate and sexual harassment caused her stress and anxiety which reduced her milk supply.

Finally, the plaintiff claimed the employers terminated her after she reported the sexual harassment internally.

The former employee sued the U.S. Navy, AECOM Inc., and a private contractor based in Arlington, Virginia, for retaliation and disability discrimination in violation of the Fair Labor Standards Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964 in December 2018.

On August 13, 2021, the Navy's acting secretary agreed that the Navy would pay $50,000 to settle the lawsuit.

The Navy also agreed under the terms of the settlement to require supplemental sexual harassment training for all employees at the Barstow base. The training will include that harassment based on lactation is illegal; that employees are prohibited by law from sexually harassing anyone on the base; and how to report witnessed or experienced sexual harassment.

The Navy will send two emails containing the Department of Labor's "Break Time for Nursing Mothers" fact sheet and instructions to share it with employees seeking accommodation to all federal managers and supervisors.

Finally, the Navy will post a description of the location of each of the base's lactation rooms on bulletin boards.

According to the American Civil Liberties Union (ACLU), a settlement was reached with one of the other defendants in 2020, although the details have not been disclosed. Charlie McGee "'Dehumanizing': Navy to pay former Barstow Marine base employee $50K to settle breastfeeding, sexual harassment lawsuit" vvdailypress.com (Sep. 03, 2021).

Commentary and Checklist

Family employers may have to provide comfortable and private places for staff to express milk and to help prevent harassment of staff who choose to do so. Failure to provide these protections could lead to violation of three laws:

Title VII of the Civil Rights Act of 1964, forbids unwelcomed and severe or pervasive harassment on the basis of sex.

The Pregnancy Discrimination Act (PDA) prohibits workplace discrimination in all aspects of employment, including hiring, firing, promotion, pay and other employment benefits. It prohibits policies that limit or prevent women from doing jobs simply because they are pregnant or of childbearing age. It also forbids policies that disparately impact women because they are pregnant or able to become pregnant.

Finally, the Fair Labor Standards Act (FLSA) requires employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Wage and Hour Division “Break Time for Nursing Mothers” www.dol.gov.

Family employers should discuss the risk with their counsel to make sure they stay compliant.

Here are some best practices for complying with the FLSA’s requirements:

  • Provide a space for breastfeeding or expressing breast milk that is available to the staff member whenever needed. It cannot be a bathroom, even if the bathroom is private.
  • The staff member must be completely relieved of work duties during pumping breaks.
  • The FLSA does not apply to family employers with fewer than 50 employees, but the small employer would have to show that to comply would pose an "undue hardship" - meaning compliance must be too difficult and expensive in comparison to the organization's size, financial resources, nature, and structure.
  • Break time for expressing milk does not have to be compensated, unless the employer provides compensated breaks for other employees, in which case the breaks must be compensated in the same manner.
  • Remember, state laws may also impose stricter requirements on employers of all sizes and additional protections for staff who are breastfeeding. Always consult with your legal counsel.
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