BILL ANALYSIS �
AB 2386
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Date of Hearing: March 28, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2386 (Allen) - As Introduced: February 24, 2012
SUBJECT : Employment and housing discrimination: sex:
breastfeeding.
SUMMARY : Adds breastfeeding and related medical conditions to
the definition of 'sex' as protected category for unlawful
employment discrimination under state law.
EXISTING LAW : Under the Fair Employment and Housing Act (FEHA),
discrimination is prohibited in housing and employment on the
basis of race, religious creed, color, national origin,
ancestry, physical disability, medical condition, marital
status, sex, age, or sexual orientation.
FISCAL EFFECT : Unknown
COMMENTS : This bill amends existing statutory definition of
'sex' under the FEHA to include breastfeeding, in order to
prevent breastfeeding discrimination in the work place. Women
with infants and toddlers are a rapid growing segment of the
labor force today. Statistical surveys of families show that
over 50% of mothers with children less than one years 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 mother's 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.
Scientific evidence supports the importance of breastfeeding for
infants and their mothers. Babies who have been breastfeed have
decreased incidences and severity of infectious diseases such as
bacterial meningitis, diarrhea, respiratory tract infection, and
urinary tract infection. 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. Breastfeeding may also have
neurodevelopment benefits, with studies showing slightly
enhanced performance on tests of cognitive development by
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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.<1> 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 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.<2>
Currently, both federal and California state law have
anti-discrimination statutes to protect women who are affected
by 'pregnancy, childbirth, or related medical conditions',
however neither state nor federal law explicitly protect from
discrimination against women who request special accommodations
for breastfeeding.
BACKGROUND UNDER FEDERAL LAW
Federal laws prohibit specified forms of discrimination in
employment, including on the basis of sex and pregnancy.
Brief history of Pregnancy and Breastfeeding Discrimination Laws
In 1974, the United States Supreme Court issued a controversial
decision in Geuduldig v. Aiello, concluding that under the equal
protection clause of the 14th amendment, pregnancy
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<1> American Academy of Pediatrics, Policy Statement:
Breastfeeding and the Use of Human Milk, 115 Pediatrics 496,
496-497 (2005).
<2> National Business Group on Health, Center for Prevention and
Health Services, Investing in Workplace Breastfeeding Programs
and Policies, 1.2.
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discrimination is not sex-based discrimination because only
women can become pregnant. 417 U.S. 484, 494 (1974). Two years
later, in 1976 the Supreme Court followed Geduldig, to find that
discrimination directed at a unique gender specific attribute,
like pregnancy, does not qualify as sex-based discrimination
under Title VII either. General Electric Co v. Gilbert, 429 U.S.
125. 133-36 (1976). As a response to these controversial
decisions, Congress passed the Pregnancy Discrimination Act
(PDA) in 1978 to qualify discrimination based on biological
conditions specific to women as sex discrimination in the work
place. Title VII now protects against discrimination resulting
from "pregnancy, childbirth and related medical conditions." 42
U.S.C. � 2000e(k).
Subsequent court decisions have consistently negated extending
PDA and Title VII protections to women who are discriminated or
retaliated against for requesting special accommodations such as
a private room, and breaks during the workday to pump milk. In
2009, the U.S. Equal Employment Opportunity Commission (EEOC)
reported that over the last ten years, charges of pregnancy
related discrimination filed with the EEOC and fair employment
practice agencies (FEPAs) have increased over 48% from 4,160 in
2000 to 6,196 in 2009.<3>
Potential Avenues for Federal Breastfeeding Discrimination
Claims
Federal courts have considered breastfeeding related
discrimination claims under several different constitutional and
statutory theories, but in general have rejected all of them.
Dike v. School Board of Orange County is the lone exception.
650 F.2d 783, 786 (5th Cir. 1981). In Dike, a school teacher
alleged that the school had interfered with constitutional right
to nurture her child because she was told not to breastfeed
during her free-lunch periods. Although the 5th Circuit Court
of Appeal agreed that a woman's right to breastfeed her child is
constitutionally protected under the 14th amendment right to
privacy, the court also held that the school had a legitimate
interest in preventing disruptions to the school day. The Dike
v. Sch. Bd. analysis has not subsequently been applied
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<3> Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY
1997- FY 20009, U.S. Equal Employment Opportunity Commission.
http://www.eeoc.gov/eeoc/statistics /enforcement/pregnancy.cfm.
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successfully to protect a woman from being discriminated against
for breastfeeding in the workplace.
Similarly, courts have also considered but have hesitated to
extend protections to pregnancy discrimination cases under the
American with Disabilities Act (ADA). 42 U.S.C. �� 12111-12117
(1990). In Martinez v. N.B.C., a New York District Court
considered whether an employer violated the ADA, when they did
not provide adequate accommodation for the plaintiff to express
milk during the work day. 49 F.Supp.2d 305, 306 (S.D.N.Y
1999). Section 1202 of the ADA defines disability as "(A) a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a
record of such impairment; or (C) being regarded as having such
impairment". The Martinez court held that absent unusual
medical conditions, "it is simply preposterous to contend a
woman's body is functioning abnormally because she is
lactating." Id. at 309. The EEOC regulation construing the
coverage of the ADA also explicitly excludes "conditions such as
pregnancy that are not the result of a physiological disorder."
29 C.F.R. � 1630.2(h) (1998).
Breastfeeding is not considered a "pregnancy related medical
condition" under Title VII
Title VII has been the most common avenue for women seeking
recourse for breastfeeding discrimination or retaliation.
However, most courts have rejected these claims reasoning that
the needs or medical conditions of the child, after child birth,
which require the presence of the mother, are considered
childcare concerns and are not within the scope of the PDA. In
Fejes v. Gilpsin Ventures, a Federal District Court in Colorado
looked at the language, legislative history, and legislative
intent of the PDA to determine whether breastfeeding or
childrearing fell within the scope of medical conditions
"related to pregnancy and childbirth". 960 F.Supp. 1487, 1492
(1996). The legislative history of the PDA exclusively deals
with female employees being denied medical benefits such as sick
leave and health insurance coverage, because of pregnancy and
childbirth. Furthermore, Congress expressly intended to codify
the EEOC guidelines that required employers to classify
"disabilities caused or treated by pregnancy, miscarriage,
abortion, child-birth and recovery" as all other temporary
disabilities. Lower federal courts have consistently followed
the Fejes finding that women requesting accommodations in the
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workplace to breastfeed are not protected by the
anti-discrimination provisions of Title VII because the PDA only
provides protection based on pregnancy related medical
conditions of the mother and not of the child. Most recently,
on February 10th, 2010, a Federal District Court judge in
Houston upheld the termination of a woman because of her request
to pump at work. In Equal Employment Opportunity Commission v.
Houston Funding II, the judge reasoned that lactation was not
pregnancy related so firing her was not sex discrimination.
Pregnancy related medical conditions that are covered by the PDA
include cramping, nausea and dizziness. Cerrato v. Durham, 941
F.Supp. 388, 393 (S.D.N.Y. 1996).
Furthermore, the 6th Circuit Court of Appeals has found that
even when the presence of the mother is essential because
breastfeeding is the only nourishment a baby will accept,
denying the mother extended leave to continue breastfeeding does
not qualify as sex discrimination under Title VII. Wallace v.
Pyro Mining, 789 F.Supp. 867, 870 (1990). Likewise, another
court found that "relating medical condition" of the child falls
outside of the protection of the PDA even when the child is
unable to bottle feed because of a cleft pallet, or difficulty
weaning. McNill v. N.Y.City Dept. of Corr., 950 F.Supp. 564, 570
(S.D.N.Y. 1996).
Mandatory Breastfeeding Accommodations in the 2010 Obama
Healthcare Reform
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. � 207(r)(1) (2010).
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
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with the mandatory accommodations.<4> 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 lowed 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.
BACKGROUND UNDER CALIFORNIA LAW:
Pregnancy discrimination is a form of sex discrimination under
Article 1 Section 8 of the California Constitution. Badih v.
Myers, 36 Cal.App.4th 1289, 1294 (1st Dist. 1995).
The State of California defines a 'breastfeeding women' to mean
"a woman up to one year postpartum who is breastfeeding her
infant." 22 CCR � 40609. Under California's Lactation
Accommodation laws, every employer, including public employers,
must provide reasonable accommodations for women who are
breastfeeding as long as they do not seriously disrupt the
employer's operations. Labor Code �� 1030-1033 (2002). These
include reasonably spaced break time to express milk, which may
run concurrently with the break time the employee is already
provided. However, only the non-concurrent break times may be
unpaid. Labor Code � 1030. Reasonable effort includes the 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 � 1031. Violations of these sections are
inspected and investigated by the Labor Commissioner, who may
issue the employer a citation or a civil penalty of $100 for
each violation. Labor Code � 1033.
Under existing law, FEHA makes it is unlawful to discriminate on
the basis of sex, which includes gender, pregnancy, childbirth
and medical conditions related to pregnancy or childbirth.
Government Code � 12946.
In June 2009, the Fair Employment and Housing Commission issued
decision in DFEH v. Acosta Tacos, finding that an employer who
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<4> Fact sheet 73: Break Time for Nursing Mothers under the
FLSA, U.S. Department of Labor, Wage and Hour Division, July
2010. http:// www.dol.gov/whd/regs/compliance/whdfs73.pdf.
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had been immediately terminated an employee after returning from
pregnancy disability leave for nursing her infant during her
lunchtime break, had denied the employee a right to a
discrimination free work environment based on sex or pregnancy
under FEHA. The Commission designated the decision to have
precedential authority. Accordingly, the decision made
terminating a female employee because was still breastfeeding
after returning from pregnancy disability leave an
discriminatory action on the basis of sex in violation of
Government Code � 12940(a).
OTHER STATES:
Prior to the Patient Protection and Affordable Care Act, only 24
states, the District of Columbia, and Puerto Rice, had some form
of workplace related breastfeeding laws, leaving a majority of
27 states without any state level protection.<5> Most of these
24 states, including California, only provide accommodation for
women who wish to express milk during work hours, and do not
provide recourse for resulting discrimination. Only seven
states have explicit anti-discrimination laws against
breastfeeding discrimination, but the reach of these provisions
vary significantly.<6> Except for the District of Columbia,
none of these states have amended the definition of 'sex' to
include breastfeeding, instead have added separate breastfeeding
accommodation and discrimination statutes.
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. C.R.S.A. � 8-13.5-104 (2008). 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. C.G.S.A. �
31-40w (2001). Similarly, Hawaii also prevents employers from
discriminating against women who are breastfeeding for the
---------------------------
<5> National Conference of State Legislatures: Breastfeeding
Laws, May 2011.
http://www.ncsl.org/issues-research/health/breastfeeding-state-la
ws.aspx
<6> Colorado, Connecticut, Hawaii, Maine, Montana, New York, and
the District of Columbia
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purposes of hiring, employing, withhold pay, demoting or
penalizing for taking breaks to express milk in the work place.
Haw. Rev. Stat. � 378-2(7) (1999). 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 on the other hand has only made it
an 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 an entirely different
approach by amending the Human Rights Act of 1977 definition of
discrimination on the basis of sex to include breastfeeding.
CHANGES PROPOSED BY THIS BILL:
This bill amends existing statutory definition of 'sex' under
FEHA to include breastfeeding, in order to prevent breastfeeding
discrimination in the work place. Consequently, the proposed
changes will prevent employers from terminating women for
pumping at work after they return from pregnancy disability
leave. It will also protect breastfeeding mothers from being
discriminated or retaliated against for requesting breastfeeding
accommodations by being reassigned to other work, required to
work different shifts, requested to take additional leave, or
being terminated. Furthermore, the changes would extend FEHA's
sexual harassment protections to breastfeeding mothers. Cal.
Gov. Code �12940 (j)(1). The employer could be liable for
harassment by its other employees, and agents or supervisors, if
the employer knows about the harassing conduct and fails to take
immediate corrective actions. Employers may also be liable for
breastfeeding harassment carried out by non-employees if the
employer has control and other legal responsibility over the
non-employees conduct. Finally, employers may not use a woman's
desire to breastfeed in the workplace as a factor in making
hiring, promotion or demotion decisions.
The proposed changes may also affect an employee's right to
extend pregnancy leave for a reasonable period of time if the
employee can show that her new born child is affected with
medical conditions, such as a cleft pallet or difficulty
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weaning, which does not allow the new born child to accept any
other form of nutrition other than breastfeeding, which requires
the mother's presence for feeding the new born child. Cal.Gov.
Code � 12926 (a)(1).
ARGUMENTS IN SUPPORT:
Breastfeeding has been universally accepted as a low-cost
intervention that protects the health of mothers and newborns.
Health care communities around the world accept breastfeeding as
one of the most important preventative care measures for
children's health. The benefits have been noted to be the
greatest when babies are exclusively fed breast milk for the
first six months of life. In California, an impressive 90% of
mothers begin breastfeeding in the hospital. Society has the
responsibility to support mothers' decisions to breastfeed and
take all necessary steps to reduce barriers so that mothers can
provide their babies with the best nutrition from an early age.
REGISTERED SUPPORT / OPPOSITION :
Support
America Federation of State, County and Municipal Employees.
California Nurses Association/National Nurses Organizing
Committee
California Rural Legal Assistance Foundation
California Women, Infants, and Children (WIC) Association.
Opposition
None on file.
Analysis Prepared by : Meeti Sudame/Benjamin Ebbink / L. & E. /
(916) 319-2091