Employment & Labor Insider

An employer’s motion for summary judgment in a lactation accommodation case was denied this week, meaning that if the case doesn’t settle, it will go to trial.

And be aware that everything in this case happened before the latest federal laws governing in this area – the Pregnant Workers Fairness Act and the PUMP for Nursing Mothers Act – were even enacted, much less in effect. So if you don't handle these requests right, it’s only going to get worse.

What happened

The employer provided workers at Pittsburgh International Airport to handle ticketing, boarding, disembarkation, and that kind of stuff for airlines that didn’t have enough of a presence to have their own ground crews on site.

Our plaintiff – we’ll call her Maddie – was hired in August 2021 and announced in October 2021 that she was pregnant.

She went out on maternity leave in March 2022 and returned to work part-time in late May 2022, when her baby was about two months old and still nursing.

Editorial aside: I would not be surprised if Maddie’s bosses were annoyed from the start that Maddie (probably) applied for the job knowing she was pregnant but didn’t disclose it until after she had started work. In other words, things between Maddie and her employer may have gone sour as soon as Maddie announced the pregnancy.

The work environment did not lend itself easily to “accommodation.” There was no private area nearby where Maddie could express milk during her shift. The employer did have a room with restricted access, but other employees had keys to the room, so even when Maddie locked the door, her co-workers could come in and out. And you probably remember that employers cannot require employees to use restrooms when expressing milk. For Maddie to get to the nearest truly private area at the airport that was designated for nursing mothers, here’s what she had to do:

• Leave the “landside” area, where she was stationed.
• Go through a Transportation Security Administration checkpoint.
• Board and ride a tram/train to the “airside” area.
• After the tram/train ride, walk 5-7 minutes to the designated nursing area.

It bears repeating that Maddie’s baby was only about two months old when Maddie returned to work, which means that she would have had to express milk approximately once every 2-3 hours.

Maddie talked with her bosses (all of whom were female, btw) about the situation. It appears that these were the only options that the bosses would agree to:

• Use one of the not-really-private areas in her immediate vicinity (the bathroom or the employee room that coworkers could enter and exit freely).
• Go to the designated nursing area that was a TSA checkpoint plus train ride plus 5-7 minute walk away.
• Express milk during downtime (when she didn’t need to express) and skip it during peak times (when she did need to express).
• Go back out on maternity leave until she wasn't expressing milk anymore.
• Wean the baby.

(I made that last one up.)

Maddie was not happy with the four options that were actually offered, and she even allegedly got a clogged milk duct from waiting too long to express milk. So she just started doing what she had to do, if you know what I mean. And filed a complaint with the U.S. Department of Labor. In mid-July, the DOL started talking with the employer and said that it was violating the Nursing Mothers Act (the predecessor to the PUMP for Nursing Mothers Act) but also made some suggestions regarding possible accommodations. Maddie’s bosses sent her home a couple of times, then suspended her, and then informed her in August 2022 that her services were no longer required.

Maddie sued the employer and her three bosses. The defendants filed a motion for summary judgment. And the court denied it, with the exception of one claim.

The claims that will go to trial are a claim for retaliation under the Fair Labor Standards Act (the Nursing Mothers Act was part of the FLSA); claims for discrimination, failure to accommodate, harassment, and retaliation under Title VII and the Pregnancy Discrimination Act; claims for discrimination and retaliation under the Pennsylvania Human Relations Act; and claims that the three bosses “aided and abetted” discrimination under the PHRA.

And again, current federal law is more employee-friendly than the federal laws that applied to Maddie.

Accommodating lactation for an airport employee has to be tough – much more so than in offices, factories, or fast-food establishments. But one big problem was that the employer apparently did make accommodations for other employees who needed them, including shuffling assignments during peak hours. Also, some of the airlines in Maddie’s immediate vicinity had private areas for their employees, but Maddie’s supervisors apparently did not ask whether Maddie might be allowed to borrow their private spaces to express milk. In other words, effective accommodation for Maddie was difficult but arguably not impossible. 

Five lactation accommodation cautions for employers

Long story, and maybe no easy answers. But here are five “lactation accommodation” warnings for employers that I hope will help:

No. 1: Suck it up. If a new employee announces for the first time that she is pregnant (and when you do the math, it's obvious that she could have disclosed this in the hiring process but didn't), that is unfortunate. But there is nothing you can do about it that would be legal, so let it go.

No. 2: In difficult accommodation situations, engage in the good old “interactive process” with the employee. By brainstorming in good faith, the two of you may actually come up with a lactation accommodation that will work.

No. 3: Before you make an irreversible (negative) decision, be sure you’ve thought everything through, including your own precedent. If you found “work-arounds” for other employees, you will be expected to do the same or a similar “work-around” as a reasonable accommodation for lactation.

No. 4: Take the employee’s stated needs seriously. If the mother of a two-month-old says she needs to express milk every 2-3 hours, that shouldn’t raise a red flag. On the other hand, if the mother of an 18-month-old says she needs to express milk every 2-3 hours, you can be skeptical. (But still check with the employee’s health care provider in case there are unusual circumstances.)

No. 5: “Sorry, we can’t accommodate” is almost never an option when it comes to nursing moms. If you feel you have to say no, consult with your employment counsel before you say anything to the employee. Even in-house counsel should get a second opinion from outside employment counsel.

No. 6 (BONUS): Forcing pregnant and nursing employees to go out on leave when they want to work is not countenanced in this day and age. You've been warned.