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Discrimination and retaliation against nursing mom: claims survive dismissal

by Sara A. Rapporthr-hero

Allison Mayer claimed that Professional Ambulance (PA) and its principals violated various laws when they failed to provide her reasonable time to express breast milk and then fired her in retaliation for her requests and complaints about this matter. PA filed a motion to dismiss the complaint. The U.S. District Court for the District of Rhode Island rejected PA’s motion in most respects, allowing Mayer to proceed to trial. Keep in mind that at this early stage of the proceedings, the court is required to assume that all allegations are true. But also keep in mind that if her claims are true, Mayer could win.

A new job

Mayer interviewed for an EMT position with PA, a family-owned and ­-operated ambulance service. The person conducting the interview, Brenda Baginski, seemed impressed with Mayer’s experience and pleased that she wanted to work the hard-to-fill nightshift position. Joseph Baginski, a principal, next met briefly with Mayer. It was a good match: Mayer was offered the EMT position at $14/hour, to be earned over a 36-hour week, divided into three 12-hour shifts. The first shift was scheduled for February 13, and the second for February 14. Thereafter, PA told her, principal Martin Baginski would finalize her ongoing schedule. PA provided Mayer with a uniform.

With the offer extended and accepted, Mayer shared a detail that seemed to set in motion the downward spiral that led to her termination only a few days later. She told Brenda that she would need to express breast milk during work breaks. It had been no trouble at her prior ambulance position, she added. Brenda’s “tone immediately changed.” She “coldly” told Mayer that she could use the bathroom, but Mayer responded that the location was not sufficiently sanitary.

Brenda left to confer with Joseph. When she came back, after a “long delay” and an “awkward return,” Brenda advised Mayer that the only space available for expressing milk was in Joseph’s office. Unfortunately, this location was also not suitable; it had an interior window looking out into the work area, with only a “flimsy” window covering. Mayer nonetheless acceded to the so-called accommodation, out of concern over Brenda’s palpable negativity.

The tone change foreshadowed the rapid decline in this brief employment relationship. Prior to her first shift on February 13, Mayer asked for her ongoing schedule, as had been promised, so she could arrange for child care. The response was that “maybe” she would have it the next day. When she arrived on February 13, however, she could not obtain a schedule. Moreover, when she did attempt to express milk on that first shift, she felt uncomfortable, even horrified. Not only was the window treatment “flimsy,” as she had discerned during the initial meeting, but the walls were so thin that it appeared that the men on the other side could hear her pumping. She could detect one of them making crude comments about the process, saying, she believed, something about “tits” or “boobs.”

During her initial two shifts, Mayer had to insist on obtaining the necessary training, which nobody had taken the trouble to arrange. When she told the dispatcher (who eventually assented to providing the training) that she needed to take a break for lactation, he took her to a locked conference room, which was without heat. She described expressing milk in that locale as “physically painful.” Finally, before the shifts ended, she again tried to learn of her ongoing assignments, only to discover that PA had not included her in the schedule at all. She called Martin, who said she could come in on Tuesday, February 17.

On Monday, February 16, however, Jacqueline Baginski called Mayer to inform her that she had been fired because there had been multiple complaints from other employees about her being “rude” and “abrasive.” Mayer recounted saying to Jacqueline: “May I ask what was said because this has never happened before?” Jacqueline allegedly responded: “No, you may not!”

Mayer went on-site and met with Brenda. She noticed that the check she retrieved for the work she had performed was not a payroll check, which she argued suggested that from the very start PA had intended to fire her. Brenda told her that the decision had been unanimous and that Mayer could call her for further explanation. Yet Brenda did not return her call.

Mayer described the work environment at PA as “sexist.” Not only was she made to feel uncomfortable about taking lactation breaks, but overall, female EMTs were degraded as not being as “strong” as the men. Mayer filed suit in federal court, alleging claims under the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and analogous state laws.

No FLSA claim

The FLSA includes a provision that requires employers to afford employees “reasonable break time” to express breast milk for one year after a child’s birth, on each occasion that the employee needs to express. The FLSA also requires that employers provide employees with a place, other than a bathroom, that is “shielded from view and free from intrusion from coworkers and the public” for expressing milk. Yet the FLSA does not require the employer to pay the employee during this break time; even more ironic, it limits liability for violations of this provision to “unpaid minimum wages.”

Thus, the U.S. Department of Labor (DOL) has opined that in most circumstances, an employee will have no meaningful cause of action under the FLSA because even if a court finds a violation, the employee has no remedy unless she can show that the unpaid wages were a proximate result of the violation. Mayer argued that the law actually creates an incentive to terminate an employee who invokes her rights under the FLSA before she can gain protection and be awarded lost wages. A federal court in Alabama came to the same conclusion, noting that an employer may simply fire an employee rather than attempt to accommodate her request for breaks.

Mayer attempted to dodge the faulty logic of the law with the argument that PA was liable for the hours that she could not work on February 17 because it had terminated her on the cusp of that service. The court was “sympathetic” but declined to extend the term “unpaid minimum wages” to include wages that she would have earned but for termination. The better fit was in state and federal antidiscrimination laws, it ruled.

Other claims survive

The FLSA also prohibits retaliation against employees who exercise their rights under the Act, including retaliation through termination or discrimination because an employee has filed “any complaint.” The complaint must be more than “abstract grumbling” and “sufficiently clear and detailed” so that the employer understands it as a “call for protection.” Mayer invoked this aspect of the law in a separate claim. She said that she voiced a “complaint” twice, first to Brenda and again to the dispatcher, who was the nightshift supervisor.

The court agreed. The two complaints were sufficient, moreover, to make out a plausible claim of retaliation, given the narrative presented. Succinctly put: Mayer was hired; then, when she requested breaks for expressing milk and rejected one option (the bathroom), the “tone changed.” The concrete and negative actions that followed (i.e., refusing to provide her with a schedule, not arranging training, and firing her after two shifts, allegedly in response to claims that she was “rude”) led to a factual question as to whether the owners/principals were retaliating against her for complaining about the break room offered for lactation.

The facts alleged also led to other claims. Title VII, the Rhode Island Civil Rights Act (RICRA), and the  Rhode Island Fair Employment Practices Act (FEPA) prohibit employers from taking adverse action against an employee on the basis of her sex, including pregnancy, childbirth, or related medical conditions. Although the FEPA defines lactation as a “related medical condition,” Title VII and RICRA are less clear. One federal court has held that a woman’s status as a lactating mother is protected under Title VII because it is a condition “related to pregnancy” under the Pregnancy Discrimination Act (PDA). Moreover, the Equal Employment Opportunity Commission (EEOC) guidance issued in June 2015 provides that “lactation is a pregnancy-related condition” and less favorable treatment of a lactating employee may raise an inference of unlawful discrimination.

The court found that lactation is a medical condition related to pregnancy and is thus covered under Title VII and RICRA as well as the FEPA. And based on the facts alleged, the court further found, Mayer had set forth sufficient evidence from which a fact-finder could find that PA terminated her once she made requests for an appropriate space for lactation, in violation of Title VII, RICRA, and the FEPA. Finally, the court found that she set forth sufficient facts to show that PA had failed to reasonably accommodate her need to express breast milk for a nursing child, in violation of the FEPA.

The hostile environment claim under the same laws was a closer call. Yet again, the court erred in favor of letting the claim survive. Title VII (and RICRA and FEPA) prohibit harassment based on pregnancy, and lactation is a medical condition related to pregnancy. Although PA argued that a one-time incident on the first day of work cannot create a “pervasive” atmosphere of hostility, the court disagreed. The accumulated and seemingly relentless insults that Mayer claimed to endure once she pressed for space to express breast milk occurred over only two shifts (24 hours). But the laughing and comments by the men in the adjoining room while she was pumping milk, the message conveyed that female EMTs were less valuable because they were not “as strong,” and the seeming refusal to provide her with a schedule or training allowed her to establish a plausible claim that PA had engendered a work environment pervaded by hostility to women.

Bottom line

The court also dismissed Mayer’s claims that PA’s conduct violated laws prohibiting discrimination based on disability. Yet the crux of her case, which alleges retaliation and sex discrimination, will proceed to trial. The lesson for employers is to follow laws obligating you to accommodate nursing women, so that mothers can attend to the needs of their very young children while participating fully in the wage-earning so crucial to their economic health.

To reach Sara to discuss this further, email her at srapport@whelancorrente.com or call her directly at 401-270-0180.

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