BILL ANALYSIS Ó
AB 2386
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON THE JUDICIARY
Mike Feuer, Chair
AB 2386 (Allen) - As Introduced: February 24, 2012
As Proposed to be Amended
SUBJECT : DISCRIMINATION: BREASTFEEDING
KEY ISSUE : SHOULD THE EXISTING PROHIBITION AGAINST SEX
DISCRIMINATION BE CLARIFIED TO EXPRESSLY INCLUDE BREASTFEEDING
DISCRIMINATION AS AN IMPERMISSIBLE FORM OF SEX DISCRIMINATION?
FISCAL EFFECT : As currently in print this measure is keyed
fiscal.
SYNOPSIS
This bill amends the definition of sex discrimination in the
Fair Employment and Housing Act (FEHA) to expressly include
breastfeeding and medical conditions related to breastfeeding in
order to prevent breastfeeding discrimination against new
mothers who seek to balance their responsibilities as parents
with their duties at work. Although this has been the
consistent understanding of the FEHA, supporters of this bill
believe it would be helpful to make the point more explicit in
order to prevent any contrary interpretation. This concern
arises because some federal courts have construed federal
statutory protections against sex and pregnancy discrimination
in a manner that leaves mothers without meaningful protection
against breastfeeding discrimination. Supporters note that the
bill is also consistent with the law in seven states that have
enacted unequivocal statutory protections against breastfeeding
discrimination. There is no reported opposition.
SUMMARY : Explicitly proscribes breastfeeding discrimination as
a form of sex-based discrimination. Specifically, this bill
amends the definition of "sex" under the Fair Employment and
Housing Act to specifically include breastfeeding and medical
conditions related to breastfeeding.
EXISTING LAW :
1)Provides pursuant to the FEHA that it is an unlawful
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employment practice for an employer, because of the sex of any
person, to refuse to hire or employ the person or to refuse to
select the person for a training program leading to
employment, or to bar or discharge the person from employment
or from a training program leading to employment, or to
discriminate against the person in compensation or in terms
conditions, or privileges of employment. (Government Code
Section 12940(a).)
2)Defines "sex," under FEHA's antidiscrimination provisions, to
include pregnancy, childbirth, or medical conditions related
to pregnancy or childbirth. (Government Code Section
12926(q).)
3)Requires that every employer provide both a reasonable amount
of break time and a room or other location for the employee to
express milk in private for the employee's infant child,
unless to do so would seriously disrupt the operations of the
employer. An employer who fails to comply with these
requirements is subject to a civil penalty in the amount of
$100 per violation. (Labor Code Sections 1030 to 1033.)
COMMENTS : In an effort to secure continued protect against
breastfeeding discrimination in the workplace, this bill, in
accord with decisional law of the Fair Employment and Housing
Commission (FEHC) amends FEHA's statutory definition of "sex" to
expressly include "breastfeeding" and "medical conditions
related to breastfeeding."
Codifies Existing Statutory Interpretation Consistently With The
Plain Language of the FEHA.
Existing law defines "sex" under FEHA's antidiscrimination
provisions to include "pregnancy, childbirth, or medical
conditions related to pregnancy or childbirth." (Government
Code Section 12926(q).) Breastfeeding would appear to
unquestionably be associated with women, pregnancy and
childbirth. This bill would simply make the obvious more
explicit.
It is also consistent with the interpretation of the FEHA by the
Fair Employment and Housing Commission, the agency charged with
adjudicating disputes under the Act. In Department of Fair
Employment and Housing v. Acosta Tacos (2009) the FEHC concluded
that "breastfeeding is an activity intrinsic to the female sex"
and that breastfeeding discrimination thus constitutes a form of
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sex discrimination under Sections 12940(a) and 12945(a) of the
Government Code. Although this conclusion strikes many as a
matter of common sense, it is significant because federal law
has been interpreted otherwise. This bill is also consistent
with the FEHC's proposed regulations concerning medical
conditions related to pregnancy. Under the proposed
regulations, lactation would qualify as a medical condition
related to pregnancy and is thus protected under FEHA.
The Health and Economic Benefits of Breastfeeding. Supporters
of this bill report that women with infants and toddlers are a
rapidly growing segment of the labor force today. Statistical
surveys of families show that over 50% of mothers with children
less than one year of age are in the labor force. While the
American Academy of Pediatrics recommends that mothers
breastfeed exclusively for the first six months and continue
breastfeeding for the first year of the child's life, most
mothers must return back to work only six weeks after giving
birth, making continued breastfeeding very difficult. In fact,
most new mothers cite their jobs as the primary factory in their
decision to stop breastfeeding.
Supporters argue that scientific evidence supports the
importance of breastfeeding for infants and their mothers.
Babies who have been breastfed have decreased incidences and
severity of infectious diseases such as bacterial meningitis,
diarrhea, respiratory tract infection, and urinary tract
infection. (American Acad. of Pediatrics, Policy Statement,
Breastfeeding and the Use of Human Milk , 115 Pediatrics 496, 496
(2007).) Older children and adults who were breastfed also face
less risk of developing type 1 and type 2 diabetes, lymphoma,
leukemia, Hodgkin disease, obesity, high cholesterol, and
asthma. ( Id. at 496-97.) Breastfeeding may also have
neurodevelopment benefits, with studies showing slightly
enhanced performance on tests of cognitive development by
children who were breastfed. Mothers who breastfeed also
experience positive health benefits, such as decreased
post-partum bleeding, decreased risk of breast and ovarian
cancer, as well as a possible decreased risk of postmenopausal
osteoporosis and hip fractures. (Id. at 497.)
These health and social benefits translate into significant cost
savings for employers and society as a whole. Employers can
reduce health care costs, lost productivity, and absenteeism by
supporting and accommodating the needs of breastfeeding
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employees. Mothers of formula-fed infants require one-day
absences to care for sick children more than twice as often as
mothers of breastfed infants. Economically, reduced illness
resulting from breastfeeding could decrease annual health care
costs in the U.S. by $3.6 billion. (Jon Weimer, U.S. Dept.
Agriculture, The Economic Benefits of Breastfeeding: A Review
and Analysis, at 10 (2001).)
Mandatory Breastfeeding Accommodations at the State and Federal
Level Lack Anti-Discrimination Provisions. Under California's
lactation accommodation laws, every employer must provide
reasonable accommodations for women who are breastfeeding, as
long as the activity does not seriously disrupt the employer's
operations. (Labor Code Sections 1030-1033.) The provisions
also includes a duty to provide the breastfeeding employee with
a private room other than a toilet stall that is in close
proximity to the employee's work area. (Labor Code Section
1031.)
Federal law provides similar protections. President Obama's
2010 healthcare reform bill, the Patient Protection and
Affordable Care Act (the Act), mandates employers to make
reasonable accommodations for women who are breastfeeding. The
Act amended the Fair Labor Standards Act of 1938 (FLSA) to
require the following: (1) employers provide a "reasonable break
time" for an employee to express breast milk at work; (2) such
break time is provided each time the employee "has need to
express the milk"; (3) break time is provided for up to one year
after the birth of the child; and (4) the employer provide a
private place, other than a restroom, where the employee may
express milk. (29 U.S.C.A. Section 207(r)(1).) The FLSA
requirements do not preempt state laws that provide greater
protection. The U.S. Department of Labor has issued a fact
sheet to provide employers additional guidance to comply with
the mandatory accommodations. However, under existing federal
law, employees exercising their rights under the FLSA have no
recourse if they face adverse employment actions in other
aspects of their jobs, such as restricted opportunities for
promotion, less flexible scheduling, or reduced wages, as the
Act does not protect against breastfeeding discrimination.
Furthermore, since the Act amends Section 7 of FLSA, many new
mothers who do not qualify for FLSA protections rely on state
laws for accommodation and recourse. (See Nicole Kennedy
Orozco, Pumping at Work: Protection from Lactation
Discrimination in the Workplace , 71 Ohio St. L.J. 1281, 1295-96
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(2010).)
Other States' Breastfeeding Discrimination Laws. Prior to the
Patient Protection and Affordable Care Act, 24 states, the
District of Columbia, and Puerto Rico, had some form of
workplace related breastfeeding laws. (National Conference of
State Legislatures, Breastfeeding Laws (May 2011)). For
example, supporters report that under Colorado's Workplace
Accommodation for Nursing Mothers Act employers are prohibited
from discriminating against mothers who exercise their rights to
express milk in the workplace. Connecticut has an even more
extensive provision under its general employment regulations
prohibiting "refusal to hire or employ or to bar or discharge
from employment, or withhold pay, demote, or penalize" an
employee who expresses milk in the workplace. Similarly, Hawaii
prevents employers from breastfeeding discrimination in their
practices related to hiring, employing, withholding pay,
demoting or penalizing employees. Maine has added breastfeeding
discrimination protections in its wage and hour statutes, 26
M.R.S.A. § 604 (2009), while New York added statutes expressing
the Rights of Nursing Mothers, including discrimination
provisions, to its labor code. (McKinney's Labor Law § 206-c
(2007).) Montana has made it unlawful for public employers "to
refuse to hire or employ or to bar or to discharge from
employment an employee who expresses milk in the workplace, or
to discriminate against an employee who expresses milk in the
workplace in compensation or in terms, conditions, or privileges
of employment unless based upon a bona fide occupational
qualification." (Mont. Code Ann. § 39-2-215 (2010).) The
District of Columbia took the approach of amending the Human
Rights Act of 1977 definition of discrimination on the basis of
sex to include breastfeeding.
Author's Technical Amendments. To aid in clarity, the author
proposes the following helpful amendments:
(q)( 1 )"Sex" includes, but is not limited to:
(i) pregnancy or medical condition related to pregnancy;
(ii) childbirth or medical condition related to childbirth;
(iii) breastfeeding or medical condition related to
breastfeeding.
(2)"Sex" also includes, but is not limited to, a person's
gender. "Gender" means sex, and includes a person's gender
identity and gender expression. "Gender expression" means a
person's gender-related appearance and behavior whether or not
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stereotypically associated with the person's assigned sex at
birth.
To clarify the Legislature's intent and understanding that
existing law protects against discrimination on the basis of
breastfeeding as a form of discrimination on the basis of sex,
consistently with the interpretation of the FEHC, which this
bill will simply restate more explicitly, add the following
uncodified statement: "The amendments enacted by this measure
are intended to be declaratory of existing law."
REGISTERED SUPPORT / OPPOSITION :
Support
American Congress of Obstetricians and Gynecologists
California Breastfeeding Coalition
California Communities United Institute
California Employment Lawyers Association
California Nurses Association/National Nurses Organizing
Committee
California Medical Association
California WIC Association
Opposition
None on file
Analysis Prepared by : Kevin G. Baker and Joshua Fox/ JUD./
(916) 319-2334