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Lactation litigation: More lawsuits alleging discrimination against breastfeeding moms

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In January of 2017, Rachel Pierce returned to work at the Shane Co. jewelry store in Minnetonka, a few months after her daughter Aria was born.

She had worked there before giving birth and really liked it. "I truly thought that I had found the company that I was going to retire with," she said.

When she told her managers she'd need to pump breast milk during the workday, she recalled, they said she could have 15 minutes every four hours. Pierce said she tried, but found that wasn't nearly enough time.

"I was struggling, and embarrassingly leaking at work," Pierce said. "I never was able to fully empty my breast in 15 minutes."

As a result, she said she often had painful, swollen breasts. She was stressed. And her body stopped producing all the milk her baby needed, who then lost weight.

Pierce also said for several months she had to pump in a conference room that all her coworkers could access. She said she was humiliated on several occasions when colleagues walked in on her.

"And I look back at that time now and know it was the lowest point in my life. I just felt powerless, like my family and my daughter was just slipping through my grasp," said Pierce. "I had to ask my sister to nurse my daughter. I had to call in sick in order to try to get my [milk] supply up."

Her employer did eventually provide a lock for the conference room to give her more privacy, she said. But after months of trying to get more time to pump when she needed it, she said, she quit, and now she's sued in Hennepin County district court, alleging that the company illegally discriminated against her.

Shane Co. contests Pierce's allegations. "Shane regularly accommodated Pierce, including giving her paid and unpaid time off whenever she needed to express breast milk," a spokesperson said in a statement. "However, despite repeated efforts to accommodate her she chose to quit."

Explosion of cases

Pierce's lawsuit is just one of dozens of lactation-related claims filed in recent years. A report published in 2016 by the Center for WorkLife Law at the University of California Hastings College of the Law found an 800 percent increase in suits filed over the prior decade.

There are a few reasons for the "explosion" of cases, said the center's director Liz Morris. First, the introduction of the electric breast pump in the U.S. market in the early 1990s made pumping an option for women at the workplace.

She said there's also been a lot of advocacy in recent years and greater awareness.  

Lastly, "there's also been a significant expansion of legal protections in the last ten years," she said.

The Affordable Care Act amended the Fair Labor Standards Act to require businesses with 50 employees or more to provide the space and time for nursing mothers to pump or breastfeed for one year after the child's birth. That law took effect in 2010.

Minnesota's law applies to all employers, regardless of size. And it toughened enforcement in 2014 with the Women's Economic Security Act, which requires the state Department of Labor and Industry to investigate employees' complaints within 10 days.

But despite those legal protections, a national study published in 2015 found fewer than half of nursing moms get the time and space to pump that they need when they return to work.

The research, led by University of Minnesota health policy and management professor Katy Kozhimannil, found that 59 percent of women surveyed reported having access to reasonable break time, and 45 percent had access to private space that was not a bathroom to express breast milk.

Overall, just 40 percent had both sufficient break time and an appropriate space to express breast milk.

Breastfeeding confers many health benefits to both moms and babies, so much so that the American Academy of Pediatrics recommends exclusive breastfeeding for the first six months of life.

In Minnesota, about 65 percent of moms breastfeed after six months. That's well above the national average.

But Kozhimannil said full-time employment is a big reason why many women stop breastfeeding early.

"In our study we found that those mothers that did have access to both break time and private space to express breast milk, they were 2.3 times more likely to be exclusively breastfeeding at six months."

In other words, she said, if employers give moms the time and space to nurse at work, they're more than twice as likely to do it.

More awareness needed

In Minnesota, since the Women's Economic Security Act was passed in 2014, 13 nursing mothers have filed complaints about breastfeeding in the workplace with the Minnesota Department of Labor and Industry. Of those, 11 violations were found.

John Aiken, director of labor standards and apprenticeship at the departments, said once employers find out what their responsibilities are, they come into compliance quickly.

He said the department has created a list of frequently asked questions and sends out monthly bulletins to employers to educate them about the law.

University of Minnesota researcher Katy Kozhimannil said more needs to be done to educate workers about their rights, and employers about their responsibilities.

"Frankly sometimes there's a lack of awareness and also sometimes it's a lack of resources or a lack of creativity about how best to make it happen," Kozhimannil said. "It's not a topic that most folks are used to having discussions about."

Research from the U.S. Department of Health and Human Services also shows that breastfeeding workers are sick less often, and that breastfeeding lowers health care costs for employers.

"Supporting employees and supporting mothers in the workplace actually saves money, and produces more loyal employees," said Morris with the Center for WorkLife Law.

But until awareness improves, Morris said she expects the number of breastfeeding related lawsuits to continue to grow.

For her part, Rachel Pierce hopes her suit helps educate women about the laws that exist to allow women to breastfeed at work.

"If I could prevent one woman from feeling how I felt and having to actually go through this much of an emotional and physical change," she said, it will be worth it.