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Can Employer Tell Breastfeeding Mom 'Go Home to Your Babies'?

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By Aditi Mukherji, JD on March 18, 2014 3:55 PM

Employment discrimination with respect to breastfeeding at work is garnering attention in courts across the nation. The Eighth Circuit recently tackled the issue in the context of constructive discharge.

The court affirmed a district court's grant of summary judgment to an employer embroiled in a pregnancy and sex discrimination case for compelling a breastfeeding's worker's resignation.

"Go Home to Your Babies"

Three actions by Nationwide Mutual Insurance Co. prompted the constructive discharge claims by the plaintiff Angela Ames:

  1. Work makeup requirement. As soon as Angela Ames returned to her job as a loss-mitigation specialist for Nationwide Mutual Insurance Co. in Des Moines, Iowa, she found herself with a tight deadline. She was told she had two weeks to make up all of the work she did not complete during her two months of maternity leave. Her options were to complete the work, or be disciplined.
  2. Denied immediate access to lactation room. Ames was not readily furnished with access to one of Nationwide's lactation rooms.
  3. "Go home to your babies" comment. When Ames couldn't obtain access to one of the lactation rooms and waited to use a wellness room instead, she asked department head Karla Neel if there was an alternative space available for her to pump breast milk because she was experiencing pain from not being able to express milk. Neel responded that it was not her responsibility to provide an alternative. Instead, Ames claims that Neel passed a pen and paper to her and told her she needed to resign, and stated: "I think it's best that you go home to be with your babies."

Not Constructive Discharge

The three-member (and all-male) panel ruled that the above conduct did not require Ames to quit her job as she did. As a result, she could not pursue her employment discrimination case brought under Title VII of the 1964 Civil Rights Act and the Iowa Civil Rights Act.

First, the panel ruled that Ames was only denied immediate access to a lactation room because she didn't submit required paperwork to obtain a badge that grants authorization to access to the room. Ames said she didn't submit the paperwork because she didn't know an access badge was required. But no dice.

The panel also ruled the work makeup requirement was lawful because it was a requirement imposed on all employees.

Finally, the panel was unconvinced about the "go home" comment and determined that Ames should have given the company a chance to make things right -- for example, by first complaining to a Nationwide nurse or the human resources department -- before quitting.

The panel also noted Nationwide's efforts to accommodate Ames and its willingness to extend her maternity beyond what was legally required.

Appeal on the Horizon?

While the panel seemed to adopt a rationale that Ames didn't adequately exhaust her remedies before quitting, it seems a bit surprising that summary judgment was so readily granted in the case. The panel played out a variety of alternatives to quitting, but those conclusions were not based on facts viewed in a light most favorable to Ames.

The EEOC seems to feel the same way -- the agency filed an amicus brief urging the Eighth Circuit to reinstate Ames' suit, The Associated Press reports.

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