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Two generations of women in the workplace have been protected from sex discrimination by Title VII. Women have been protected from pregnancy discrimination for almost twenty-five years by the Pregnancy Discrimination Act. Every once in a while, however, a case comes along to remind all of us that, despite all of the laws that have been passed, working women, and in particular, working mothers, face unique issues and challenges in the workplace. One of those cases is Fortier v. U.S. Steel Group, 2002 U.S. Dist. LEXIS 11788 (W.D. Pa. June 4, 2002). In Fortier, the court was confronted with the question of whether harassment and discrimination against a pregnant woman, ostensibly based on her desire to breastfeed after giving birth, violates any federal statute. PAYROLL CLERK ANNOUNCED PREGNANCY AND BREASTFEEDING DESIRE Kristen Fortier began working for U.S. Steel as a payroll clerk in July 2000. Shortly after she began working, she told her supervisor, a woman, that she was pregnant and that she planned to breastfeed her child. Fortier claimed that her supervisor and the head of the payroll office, a male, began to harass her about her intention to breastfeed and ominously warned her that breastfeeding might “interfere with her work performance.” A few weeks after announcing her plans, Fortier was called into a meeting with her supervisors, was accused of having misfiled an important microfiche, and was told that she could either resign or be placed on two weeks probation. Fortier declined these options, left the workplace and never returned. After exhausting her administrative remedies, Fortier filed a claim of pregnancy and sex discrimination based upon her treatment by U.S. Steel. Her husband, also a U.S. Steel employee, filed a claim of retaliatory discharge but, since he did not exhaust his administrative remedies, his claim was easily dismissed. PREGNANCY DISCRIMINATION ACT DOES NOT COVER BREASTFEEDING At first, it would seem natural to equate breastfeeding with pregnancy and to conclude that discrimination based upon breastfeeding falls clearly within the prohibitions of the Pregnancy Discrimination Act. As with any statute, however, the precise definitions and prohibitions are critical. The PDA provides that “women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected . …” Prior to Fortier, courts have uniformly held that breastfeeding and weaning may be naturally related to “pregnancy and childbirth,” but they are not “medical conditions” covered by the PDA. In Fortier, the court denied U.S. Steel’s motion to dismiss and found that Fortier had “stated a claim for discrimination of harassment based on her status as a pregnant woman.” The court blurred the distinction between her pregnancy announcement and her stated intention to breastfeed, thus avoiding the line of cases holding that discrimination against women for breastfeeding, in and of itself, violates no federal law. In fact, the court stated that, because Fortier was only a “potential member” of the class of “women who breastfeed,” the question of whether this class was protected by federal law could wait for another day. NO ACCOMMODATIONS FOR BREASTFEEDING In addition to those cases where courts have held that discrimination against breastfeeding, alone, is not governed by Title VII or the PDA, the court in Martinez v. NBC, Inc., 49 F.Supp. 2d 305 (S.D. N.Y. 1999), ruled that lactation or breast pumping is not a disability under the Americans with Disabilities Act. As such, MSNBC, where Martinez worked as an associate producer, was not required to make special accommodations for her to breastfeed during her employment. Alone among the states, Minnesota specifically requires that an employer provide reasonable unpaid break time — and an appropriate location — for an employee to express breast milk. While New York law provides that women shall be permitted to breastfeed in public locations, this law has never been applied to the employment context. Breastfeeding in the workplace illustrates the still-limited reach of the law in influencing real-world behavior in the workplace. While so-called “progressive” companies may provide a time and location for breastfeeding or expressing breast milk, there appears to be no federal law which would require or regulate this corporate behavior, nor is there any case law that applies the existing laws to this situation. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, www.postschell.com. He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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