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Even though our society has entered a new millennium, technological advances abound, and our economy barrels along at a breakneck pace, working women continue to be confronted with tough choices between family and career. The civil rights laws enacted over the past few decades have certainly enhanced women’s roles in the workplace. The income gap between men and women has narrowed, and more women have attained higher management levels within corporate America. More, however, needs to be done. It is perhaps critical now, as employers find it difficult to find and keep qualified employees in this very tight labor market, for American businesses to identify and implement ways to ease the burdens for working women who attempt to juggle the demands of family and career. One way is to afford new mothers the opportunity to breast-feed their newborn children in the workplace. This choice has perhaps taken on renewed importance as mothers, both working and nonworking, many of whom have read the latest findings about the benefits of breast-feeding, strive to do everything possible to maximize their children’s development. The courts, however, have generally not protected this particular choice of women. One of the few court decisions addressing this issue was a recent case in the Southern District of New York, Martinez v. NBC. [FOOTNOTE 1]This case not only exemplifies the difficulties a woman may face in choosing to breast-feed her child, but exposes the problems an employer may encounter in attempting to reconcile this choice with the realities of its own business operations even if it attempts to accommodate the employee. Martinez was an associate producer with the all-news cable television network MSNBC, the principal defendant in the action. Before she accepted the position, Martinez told one of the MSNBC executives, whom she had known in one of her prior jobs, that she was pregnant. In November 1996, six months after she was hired, she went on maternity leave. In March 1997, after the birth of her child, she returned to work in a part-time producer position, a position that was actually at a higher level than her previous position. In June 1997, she moved to a full-time producer position and began reporting to a female senior broadcast producer. With her manager’s consent, Martinez was allowed to pump breast milk three times per day in an empty edit room at her work location. This arrangement proceeded without incident from May until late July 1997. At that point, and over the next few weeks, several incidents occurred where other employees attempted to enter the room with a key while she was inside. As a result, Martinez raised concerns about her privacy with the MSNBC human resources department. In addition to these concerns, Martinez also complained about three occasions on which male co-workers allegedly made offensive comments regarding her breast pumping. As a result of her complaints, the company suggested that a “do not disturb” sign be put on the door of the room she was using, but she rejected this accommodation. She also rejected a number of alternative locations offered by MSNBC to pump her breast milk. Beginning in August 1997, Martinez also began to encounter difficulties with her schedule, which centered around her childcare needs. At times, producers were scheduled to work additional hours to handle breaking news stories, program needs, and vacation schedules. In late August and early September 1997, the deaths of Princess Diana and Mother Teresa resulted in extensive media coverage that placed enormous demands on all MSNBC employees. During this period, Martinez worked just one extra weekend shift. In an effort to accommodate Martinez’s desire for a more regular work schedule, in early September MSNBC offered Martinez her previous position of associate producer. Martinez rejected this assignment because it would have required her to work one weekend day. Instead, she advised MSNBC that she wished to remain in her producer position, and that she would begin searching for another job with another employer. Thereafter, on September 15th, MSNBC notified Martinez that she would be moved in three weeks to an associate producer position at a reduced salary with a fixed Tuesday through Saturday shift. In October, just prior to her transfer to the associate producer position, Martinez took a three-week medical leave. When she returned, she asked, and was allowed, to take off every Saturday until her resignation, which became effective on December 23, 1997. [FOOTNOTE 2] After submitting a charge of discrimination to the Equal Employment Opportunity Commission (EEOC), Martinez filed a lawsuit alleging claims for: (1) discrimination in violation of the Americans With Disabilities Act (ADA) on the theory that lactation is a disability; (2) retaliation under the ADA for complaining about the allegedly inadequate facilities provided for her breast pumping; (3) disparate treatment discrimination on the basis of her gender under the Civil Rights Act of 1964, as amended, (Title VII); (4) sexual harassment, and (5) retaliation in violation of Title VII. On May 18, 1999, Judge Lewis Kaplan of the Southern District of New York granted the employer’s motion for summary judgment on all of Martinez’s claims. The court began its opinion by stating: The transformation in the role of women in our culture and workplace in recent decades and the civil rights movement perhaps will be viewed as the defining social changes in American society in this century. Both have resulted in important federal, state and local legislation protecting those previously excluded from important roles from discrimination in pursuit of the goal of equality. Nevertheless, few would deny that the problems facing women who wish to bear children while pursuing a challenging career at the same time remain substantial. This case illustrates one of those problems. [FOOTNOTE 3] Perhaps the most straightforward analysis came with a dismissal of Martinez’s ADA claims, where the court found that Martinez was not disabled under ADA with respect to her condition of “lactation.” The court’s conclusion with respect to the ADA claim comported with other ADA decisions which have held that “pregnancy and related medical conditions do not, absent unusual conditions, constitute a [disability] under the ADA.” [FOOTNOTE 4]Given the elements of the ADA, and the cases that have interpreted those elements, it is hard to argue with the court’s reasoning on Martinez’s ADA claims. The more attenuated analysis, however, occurred with Martinez’s gender discrimination claim. Relying on the 1976 Supreme Court case of General Electric Co. v. Gilbert, [FOOTNOTE 5]the court initially stated, The drawing of distinctions among persons of one gender on the basis of criteria that are immaterial to the other, while in given cases perhaps deplorable, is not the sort of behavior covered by Title VII. [FOOTNOTE 6]The Martinezcourt concluded by holding that Martinez could not sustain her claims of gender discrimination because she had not proven, and could not prove, that she was treated differently than similarly situated men. [FOOTNOTE 7]In doing so, the court rejected the notion that the “sex-plus” discrimination theory applied. “Sex-plus” discrimination is an allegation that a member of one sex is treated more favorably, because of some characteristic other than pure gender, than an individual of the opposite sex with the same characteristic. On this point, the court stated succinctly: To allow claims based on sex-plus discrimination here would elevate breast milk pumping � alone — to a protected status. But if breast pumping is to be afforded protected status, it is Congress that may do so. Accordingly, Martinez fails to state a prima facie claim of gender discrimination. [FOOTNOTE 8] While the court’s dismissal of Martinez’s gender discrimination claims was probably the right decision, the court’s reliance on Gilbertin rejecting the applicability of the “sex-plus” doctrine appears to have missed the mark. The court in Martinezfailed to indicate that the PDA was enacted in 1978 in direct response to, and essentially overruled, the Supreme Court decision in Gilbert. The rationale for Congress’s reaction to Gilbertwas simple — pregnancy is a characteristic applying solely to women, and any discrimination against women based on this uniquely female condition must in fact be included as gender discrimination under Title VII. As a result, Congress amended Title VII by passing the PDA. At first glance, this same rationale would seem to apply to breast-feeding, another uniquely female condition. The real question, however, is whether breast-feeding is a condition that is covered by the PDA. The answer in the courts so far has been “no.” The few courts that have decided this narrow issue have concluded that the PDA does not encompass breast-feeding. [FOOTNOTE 9]The courts’ reasoning is deduced straight from the legislative history of the PDA which showed Congress’s intent in enacting the legislation — it was meant to prevent discrimination against women because of pregnancy-related conditions, and was not designed to afford women time off or other accommodations as a result of the needs of their newborn children. [FOOTNOTE 10]The court in Martinezfailed to go through this analysis, or even decide whether the PDA applied, and in fact only made a passing reference to the PDA in a footnote. [FOOTNOTE 11] In any event, the legislative history of the PDA seems to clearly preempt any claim based on breast-feeding. One could argue that lactation is a uniquely female condition that is inextricably related to a woman’s pregnancy, and therefore covered by the PDA, [FOOTNOTE 12]but this argument seems overwhelmed by the PDA’s very clear legislative history. Even so, a woman in this situation is not without protections. For instance, if an employer terminates a woman after reacting negatively to both the woman’s pregnancy and the woman’s subsequent decision to breast-feed, these two types of evidence may be combined to support an inference of pregnancy discrimination. [FOOTNOTE 13]Moreover, several states have enacted legislation designed to protect mothers who breast-feed by requiring that employers accommodate their needs or by permitting breast-feeding in public places. [FOOTNOTE 14]On a national scale, the Family and Medical Leave Act has helped women who have chosen to breast-feed by affording up to 12 weeks of leave per year, albeit unpaid, to care for a child. Aside from these legal protections, the reality is that the vast majority of employers today will undoubtedly attempt to accommodate, at least in a reasonable fashion, a woman’s desire to breast-feed her child. The other reality is that working women in the 21st century will continue to bear most of the responsibility for balancing family and work, and with respect to the choice to breast-feed their children, will of course shoulder this responsibility exclusively. As Martinezdemonstrates, conflicts will inevitably arise between employers and employees on this issue. This article is excerpted with permission from CCH’s Journal of Employment Discrimination Law, Winter 2000 Edition. Mr. LaPointe, a partner in the Chicago office of Oppenheimer Wolff & Donnelly, is a member of Oppenheimer’s Labor and Employment Group. He has represented employers nationwide in employment litigation at the trial court level, as well as on appeal in the various U.S. Courts of Appeal. Mr. LaPointe is a former law clerk for the Honorable Charles R. Norgle, Sr., of the U.S. District Court for the Northern District of Illinois. He received his law degree from IIT Chicago-Kent College of Law. FOOTNOTES: FN149 F. Supp. 2d 305 (S.D.N.Y. 1999). FN2After her resignation, she promptly found another job at a salary that exceeded her highest salary at MSNBC. She worked with that employer for two weeks, then accepted a part-time associate producer position at CBS, working twenty hours a week at a substantially reduced salary. Id. at 308. FN3Id. at 305. FN4See authorities cited in footnotes 7 through 10 in Martinez, 49 F. Supp. 2d at 308-09. FN5429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976). FN649 F. Supp. 2d at 309. FN7Id. at 310-11. FN8Id. at 311. FN9See Barrash v. Bowen, 846 F.2d 927 (4th Cir. 1988); Fejes v. Gilpin Ventures, Inc.,960 F. Supp. 1487 (D. Colo. 1997); McNill v. New York City Dept. of Correction, 950 F. Supp. 564 (S.D.N.Y. 1996); Wallace v. Pyro Mining Co., 789 F. Supp. 867 (W.D. Ky. 1990); see also Beall v. Abbott Laboratories, 130 F.3d 614 (4th Cir. 1997) (plaintiff failed to establish a hostile work environment claim based on derogatory remarks regarding her pumping of breast milk); but see Bond v. Sterling, Inc., 997 F. Supp. 306 (N.D.N.Y. 1998) (evidence of employer’s negative reaction to plaintiff’s pregnancy leave and to plaintiff’s subsequent request to breast-feed her child sufficient to state a claim that her discharge was the result of pregnancy discrimination under the New York Human Rights Law). FN10See Fejes, McNill, Wallace, supra. FN1149 F. Supp. 2d at 309 n.16. It appears, however, that the plaintiff in Martinezdid not oppose the employer’s motion on this basis. Indeed, the court noted that, Plaintiff does not dispute the foregoing analysis, i.e. that discrimination based on breast-feeding “is not impermissible gender-based discrimination under the principles set forth in Gilbert.” 49 F. Supp. 2d at 309-10. FN12Indeed, courts have consistently held that a pregnancy discrimination claim under the PDA may evolve from acts which occur before, during, or after a woman’s pregnancy. FN13See Bond v. Sterling, Inc., 997 F. Supp. 306 (N.D.N.Y. 1998) (employer’s motion to dismiss denied; there was sufficient evidence to state a claim for pregnancy discrimination under the New York Human Rights Law). FN14E.g., Minn. St. Ann. � 181.939 (West 1998) (employer accommodation of breast pumping); N.Y.Civ. R. L. � 79-e (McKinney Supp. 1999) (breast-feeding). � 2000, CCH INCORPORATED. All Rights Reserved.

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