Legal to Ban Breastfeeding at Your Business? - Free Enterprise
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Legal to Ban Breastfeeding at Your Business?

A Victoria's Secret customer in Texas was not allowed to breastfeed in a fitting room, Austin's KTBC-TV reports. But was it legal for the store's staff to turn her away?

Customers and business owners alike are wondering whether employers can legally ban breastfeeding.

The answer to that question is generally state-specific.

Right to Breastfeed

The legal ability to ban breastfeeding at a business depends on state-specific law. Most states grant a mother the right to breastfeed in any location -- public or private -- in which she is authorized to be. In such states, businesses cannot ban breastfeeding.

According to the National Conference of State Legislatures, there are at least 45 states with laws that protect a woman's right to breastfeed in public, but the contours of the laws vary. For example:

  • At least 24 states recognize the right to breastfeed in the workplace.
  • Some states, such as Illinois, limit the protection in certain settings such as "places of worship."
  • Other states require women to be discreet -- businesses should always beware asking nursing mothers to cover up in states that don't require it.

It's likely the Victoria's Secret customer in Texas did have a legal right to express milk in one of the store's fitting rooms. This is because Chapter 165 of the Texas Health and Safety Code provides that "a mother is entitled to breastfeed her baby in any location in which the mother is authorized to be."

Employees' Right to Accommodations

Under Section 7 of the Fair Labor Standards Act, employers with at least 50 employees must provide non-exempt nursing employees unpaid break time to express milk, for up to a year after the birth of a child. An employer must also "provide a place, other than a bathroom, that is shielded from view" for the employee to express breast milk.

The law on "lactation discrimination" is a different story. For example, a federal judge in Texas dismissed an alleged discrimination case in which a Houston woman was fired for requesting permission to pump milk at work. The judge ruled there was no cause of action for "lactation discrimination" under the Pregnancy Discrimination Act because "lactation is not pregnancy, childbirth, or a related medical condition." The judge also determined lactation discrimination is not sex discrimination.

Breastfeeding laws are far from clear-cut. But as the Victoria's Secret snafu clearly demonstrates, limiting a woman's ability to breastfeed can lead to many more uncomfortable consequences than catching a glimpse of an exposed breast.

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