BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2386 (Allen)
As Amended April 25, 2012
Hearing Date: June 19, 2012
Fiscal: Yes
Urgency: No
TW
SUBJECT
Employment and Housing Discrimination: Sex: Breastfeeding
DESCRIPTION
This bill would clarify, under the Fair Employment and Housing
Act, protection from employment discrimination for breastfeeding
or medical conditions related thereto.
BACKGROUND
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation and services
provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
have been amended to include other characteristics such as
medical conditions, marital status, and sexual orientation.
Also over time, other statutes were amended to reflect the
state's public policy against discrimination in all forms.
This author-sponsored bill would add breastfeeding to the
definition of "sex," which is a protected characteristic under
FEHA.
CHANGES TO EXISTING LAW
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits discrimination in housing and employment on the basis
of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
(more)
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marital status, sex, age, or sexual orientation. (Gov. Code
Sec. 12920 et seq.)
Existing law , under FEHA, provides that the definition of "sex"
includes, but is not limited to, pregnancy, childbirth, or
medical conditions related to pregnancy or childbirth. (Gov.
Code Sec. 12926(q).)
Existing law prohibits an employer from refusing to provide
reasonable accommodation for an employee for a condition related
to pregnancy, childbirth, or a related medical condition, if she
so requests, with the advice of her health care provider. (Gov.
Code Sec. 12945(a)(3)(A).)
This bill would add "breastfeeding or medical conditions related
to breastfeeding" to the definition of "sex" under FEHA.
COMMENT
1. Stated need for the bill
The author writes:
The lack of specificity in state law with respect to
breastfeeding can contribute to unfortunate consequences. In
fact, several federal district courts have ruled against
workplace discrimination cases involving breastfeeding. Most
recently on February 10th, 2012, a federal district court
judge in Houston �, Texas] in Equal Employment Opportunity
Commission v. Houston Funding II, Ltd., upheld the termination
of a woman because of her request to pump at work. In the
decision, the judge reasoned that nursing was not
pregnancy-related, so firing her was not sex discrimination.
Women with infants and toddlers are a rapid growing segment of
the labor force today. Given the inherent inconvenience of
pumping in any environment, it is not surprising that woman
often cite their job as a primary factor in their decision to
stop breastfeeding. However, many women cite workplace
harassment or pressure from employers, supervisors, or
co-workers as a major reason for their decision to stop
breastfeeding. For example, it is not uncommon for employers,
supervisors, or co-workers to express their preference for the
nursing mother to stop pumping in the workplace. Many women
have also cited employer requested leave until they are done
breastfeeding or being barred from work activities.
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Scientific evidence supports the importance of breastfeeding
for infants and their mothers. Breastfeeding significantly
reduces children's risk for acute infections and chronic
diseases such as diabetes, asthma, and obesity. Breastfeeding
also reduces the mother's risk for type 2 diabetes and breast
and ovarian cancers. These health and social benefits
translate into significant cost savings for businesses because
of reduced absenteeism and lower healthcare premiums.
2. Clarifying breastfeeding protections from employment
discrimination
Existing law prohibits employment discrimination based on sex.
(Gov. Code Sec. 12926.) The definition of "sex" under FEHA
includes pregnancy, childbirth, or medical conditions related
thereto. (Gov. Code Sec. 12926(q).) This bill would include in
the definition of "sex," breastfeeding or medical conditions
related thereto for purposes of prohibitions on employment
discrimination.
Although existing law prohibits discrimination for medical
conditions related to pregnancy and childbirth, the law does not
specifically prohibit discrimination for breastfeeding in the
workplace. Existing law also requires an employer to provide
reasonable accommodations to an employee for conditions related
to pregnancy and childbirth (Gov. Code Sec. 12945(a)(3)(A)), as
well as breastfeeding accommodations for employees desiring to
express breast milk for the employee's infant child (Lab. Code
Sec. 1030).
Breastfeeding discrimination has become increasingly problematic
for working mothers. This issue was addressed by the Fair
Employment and Housing Commission (FEHC) in its review of
Department of Fair Employment and Housing v. Acosta Tacos et al.
(2009) No. E200708 T-0097-OOse; C 08-09-017; 09-03-P, FEHC
Precedential Decs. ____, CEB ___, p. ___. In the Acosta case,
an employee was fired after her supervisor told her she could
not return to work until she was no longer lactating and the
employee pleaded to return to work after child birth. The FEHC,
relying on an out-of-state court decision regarding
breastfeeding (see Wallace v. Pyro Mining Co. (W.D.Ky. 1990) 789
F. Supp. 867, 869) determined that "�w]hile breastfeeding may
not be a pregnancy-'related medical condition' qualifying Chavez
�the employee] for additional pregnancy disability leave, Chavez
was not asking for leave to breastfeed her newborn baby. Indeed,
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she presented herself to her employer as no longer disabled by
her pregnancy and thus able, and entitled, to return to work
immediately following her pregnancy disability leave." (Dept.
of Fair Empl. and Hous. v. Acosta Tacos et al. (2009) No.
E200708 T-0097-OOse; C 08-09-017; 09-03-P, FEHC Precedential
Decs. ____, CEB ___, p. ___.) Since there is currently no
express breastfeeding discrimination prohibition, the FEHC only
held that the employee had been discriminated against due to a
pregnancy-related medical condition because she was not allowed
to return to work after maternity leave. (Id.) However, the
FEHC designated the Acosta decision as "precedential on the
basis of the holding that breastfeeding is an activity intrinsic
to the female sex." (Id.)
More recently, an ABC News article reported on another mother in
Houston, Texas who was fired because of lactation at work. (See
Kim, Judge Backs Firing of Houston Breastpumping Worker, ABC
News (Feb. 8, 2012) http://abcnews.go.com/Business/
houston-judge-fired-breast-pumping-sex-discrimination/story?id=15
533573 �as of June 10, 2012].) The article discussed a suit
brought by the Equal Employment Opportunity Commission on behalf
of a mother who wanted to use a breast pump at work. According
to the article, the judge stated that "firing someone because of
lactation or breast-pumping is not sex discrimination." (Id.)
Joan Williams, a University of California, Hastings law
professor noted that "�e]very body knows that breastfeeding is a
medical condition related to childbirth." Williams discussed
the medical benefits of breastfeeding and noted that
"pediatricians have long recommended women should breast feed
babies for a certain time after birth to help transmit a
mother's immunity system. . . . �I]f mothers can't pump or
nurse, they are at risk of mastitis, a breast infection which
can be 'extremely painful' and sharply spike temperatures. 'How
is that not a condition related to pregnancy and childbirth?
Have you ever known a woman who was nursing who did not have a
child?'" (Id.)
At least five other states have anti-discrimination policies for
breastfeeding workers: Hawaii provides that it is an unlawful
discriminatory practice for any employer to refuse to hire or
employ, bar, or discharge a lactating employee because the
employee breastfeeds or expresses milk at the workplace (Hawaii
Rev. Stat. Sec. 378-2); Mississippi prohibits discrimination
against breastfeeding mothers who express milk at work during
break times (Miss. Code Ann. Ch. 1 Sec. 71-1-55); New York
prohibits discrimination against breastfeeding mothers (N.Y.
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Labor Law Sec. 206-c); and Vermont prohibits discrimination
against mothers who express milk at work (Vt. Stat. Ann. tit.
21, Sec. 305).
The California Nurses Association supports this bill and states
that "�e]nsuring that all breastfeeding women have protection
through �FEHA] will help protect all women, but particularly
low-income working women, who want to continue breastfeeding
their babies. It will also ensure that their babies receive the
significant health benefits of breast-milk. This bill will
encourage breastfeeding women to not fear any harm to their
employment . . . based on the needs of their new babies." In
recognition of the fact that breastfeeding is an activity
intrinsic to the female sex, this bill would expand California's
existing protections for breastfeeding mothers by providing that
breastfeeding employees are protected from employment
discrimination under FEHA.
Support : American Congress of Obstetricians and Gynecologists;
American Federation of State, County and Municipal Employees,
AFL-CIO; California Breastfeeding Coalition; California
Communities United Institute; California Employment Lawyers
Association; California Nurses Association; California Medical
Association; California Society of Association Executives;
California Women, Infants and Children Association; First 5 LA;
National Nurses Organizing Committee
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 1025 (Frommer, Ch. 821, Stats. 2001) required employers to
provide lactation accommodations to employees and established a
misdemeanor penalty for the failure to provide such
accommodation.
Prior Vote :
Assembly Floor (Ayes 64, Noes 10)
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Assembly Committee on Appropriations (Ayes 14, Noes 2)
Assembly Committee on Judiciary (Ayes 9, Noes 1)
Assembly Committee on Labor and Employment (Ayes 5, Noes 1)
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