In March 2010 the Patient Protection and Affordable Care Act and Reconciliation Act of 2010 were signed into law.  These Acts include a provision governing “reasonable break time for nursing mothers” for those categories of employers and employees covered under the Fair Labor Standards Act.  However, neither these Acts, nor the Pregnancy Discrimination Act, nor Title VII, nor the Americans with Disabilities Act ensure that women are protected from discrimination resulting from her choice to lactate in the workplace. 

The American Academy of Pediatrics recommends that a child be breastfed exclusively until they are six months old.  However, for children born in 2008, while 74.6 percent began to breastfeed, only 44.3 percent were breastfed at six-months-old.  Children born into lower income families have much lower rates of breastfeeding and a study of Maryland WIC participants found that one of the most frequent reasons these women report ceasing breastfeeding is “having to return to work.”  While the Patient Protection and Affordable Care Act and Reconciliation Act of 2010 does require that employees covered under the Fair Labor Standards Act be granted “reasonable break time” to lactate at work, the Acts do not apply to jobs held by some of the lowest paid working mothers in the United States.

Accordingly, this paper reviews 2 agency decisions, 2 state and local court decisions, and 17 federal United States court decisions in which the plaintiff(s) filed claims alleging that they had been discriminated against for requesting to or attempting to lactate.  These claims include, but are not limited to, those in which: (1) the employer failed to accommodate a woman who requested to lactate at work; and / or (2) the woman suffered an adverse employment action based upon her decision to lactate at work. 

The paper analyzes language contained within the decisions, both the courts’ holdings and dicta, for patterns regarding both how the court has treated and may treat claims of discrimination made under the following laws: the Pregnancy Discrimination Act; Title VII; the Americans with Disabilities Act; and the Patient Protection and Affordable Care Act and Reconciliation Act of 2010.  Analysis indicates that the courts will be unsympathetic to claims made under any or all of these laws.  Courts have indicated that:

- A mother’s choice to breastfeed her child would not be considered a medical condition related to childbirth or pregnancy under the Pregnancy Discrimination Act;

- When a woman is denied the right to breastfeed, there is no viable claim for either sex or sex-plus discrimination, analyzed under the Title VII framework; and

- Claims made under the Americans with Disabilities Act would not be successful because lactation is not considered a disability.

Finally, this paper will discuss the need for new legislation to provide further protection for women who choose to lactate in the workplace.