Joel Dillard & Associates

Representing Working People

Breastfeeding discrimination is unlawful

Under federal law, it is illegal to discriminate against an employee because she was lactating or expressing milk. EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 428 (2013). This means that, if the employer gives breaks to employees for other reasons - smoke breaks, bathroom breaks, etc. - it also has to give comparable breaks to pump milk. Hicks v. City of Tuscaloosa, 870 F. 3d 1253, 1260-61 (11th Cir. 2017). The Supreme Court has spoken, and there is no longer any room to doubt it. Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 1354 (2015).

Mississippi state law gives the same guarantee to employees, even of very small employers not covered by federal law: No employer shall prohibit an employee from expressing breast milk during any meal period or other break period provided by the employer. Miss. Code § 71-1-55.

The Fair Labor Standards Act - more famous for guaranteeing minimum wages and overtime - was recently amended to guarantee (unpaid) pumping breaks. The 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 each time such employee has need to express the milk; 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. 29 U.S.C. § 207(r)(1). If an employer violates this law, and the employee makes a complaint about it, the employer cannot retaliate against the employee for it. 29 U.S.C. § 215(a)(3).

There are extremely compelling reasons for this law, as we've written about before: workplace protections for breastfeeding can save lives and improve the health and intelligence of the next generation of Americans.

Not being proactive about protecting breastfeeding can open the employer to an embarrassing and potentially costly lawsuit - in addition to being illegal and unwise.

So get the word out. You can work and breastfeed. You don't have to accept the bathroom as good enough. Pumping breaks are protected. Breastmilk should be exclusive to six months and the primary nutrition for a year. Save the babies.


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