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Despite new legal protections, breastfeeding Minnesota women still face challenges at work

Rachel Pierce, shown with daughter Aria
MinnPost photo by Greta Kaul
Rachel Pierce, shown with daughter Aria, filed a suit against the Shane Company, alleging discrimination under the Minnesota Human Rights Act and violations of the Women’s Economic Security Act.

Rachel Pierce started working as a sales associate at the Shane Co., a jewelry seller, in Minnetonka in May of 2016.

She left the store in October when her daughter Aria was born because she hadn’t been with the company long enough to qualify for maternity leave. But she was rehired early in 2017.

Then the troubles started. Despite Pierce’s efforts over the next several months to educate managers about her needs to pump breast milk as a nursing mom, and to notify the company’s human resources department, she alleges she wasn’t given the resources she needed to do it.

Pierce struggled to produce enough milk to feed her baby, and Aria wouldn’t take formula. When the infant wasn’t putting on enough weight, Pierce felt she had to choose between her work and her daughter’s health. She ultimately quit the job in August.

That’s according to allegations in a complaint filed in November in a lawsuit against the Shane Co., alleging discrimination under the Minnesota Human Rights Act and violations of the state’s Women’s Economic Security Act (WESA). (The Shane Co. did not respond to requests for comment from MinnPost.)

Laws like WESA were enacted to protect women who are nursing in the workplace. But the sometimes vague provisions surrounding pumping at work, and lack of awareness that protections exist mean that some women struggle to get the accommodations they need.

Benefits of breastfeeding

In Minnesota, nearly 90 percent of mothers breastfeed their newborns, and nearly 60 percent breastfeed their children at six months, according to the Public Health Law Center at Mitchell Hamline School of Law.

Breastfeeding isn’t for everyone, but it has been found to be beneficial to both children and mothers. It reduces the risk of sudden infant death syndrome, ear infections, and gastrointestinal and respiratory infections in babies, among other medical conditions. For mothers, it lowers the risk of type 2 diabetes mellitus and breast and ovarian cancer, according to a report from the National Center for Biotechnology Information.

Breastfeeding is a time commitment: A typical newborn might nurse about every two hours, and it’s recommended that working moms pump every two to three hours they are away from the baby to keep the supply of milk going: Without eliminating milk on a consistent basis, women’s bodies may stop producing a steady supply.

Milk doesn’t flow from breasts automatically — it requires the activation of a letdown reflex that allows milk to flow through the ducts into the nipple. This is stimulated by a release of the brain chemical oxytocin caused by a baby’s sucking. For women who are pumping, doctors often recommend they relax and think about their child to activate the reflex. Pumping time ranges, but typically takes about 30 minutes.

Because of its demands, the benefits of breastfeeding aren’t evenly distributed across moms: Women with more flexible jobs tend to breastfeed at higher rates and for longer, according to a recent report from the University of California, Hastings College of Law.

New laws

As women have become a fixture in the workforce, and research backs breastfeeding as a healthy practice for moms and babies, the matter of pumping at work has come to a head, leading policymakers to strengthen workplace protections for nursing mothers. That doesn’t mean those laws are necessarily well-known — or enforced, according to researchers and advocates.

The Affordable Care Act required employers to allow working moms reasonable break time “each time (she) needs to express the milk” for a year after a child’s birth. The time may be unpaid, but nursing moms can also use any regular paid break time to express milk. The ACA also required employers to provide a “place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” to express breast milk. In some states, this does not apply to salaried workers.

Minnesota passed protections for nursing mothers in 2014’s Women’s Economic Security Act (WESA), which requires all employers to “provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. The break time must, if possible, run concurrently with any break time already provided to the employee.” It does not require the employer to provide such breaks if it would “unduly disrupt the operations of the employer.” Like the ACA, it requires employers to provide a private, non-restroom space — this time with an electrical outlet — to pump. Employers can’t legally retaliate against workers for asking for accommodations to pump, and the Minnesota Department of Labor and Industry is required to investigate complaints within 10 days.

Between July 2014 and August 2018, there were 13 complaints filed with the Department of Labor and Industry related to nursing mothers under WESA. The complaints range from not providing space outside a restroom to pump milk, not ensuring privacy and not allowing enough time to pump milk. In 11 of the 13 cases, violations were found.

“If we see a potential violation, we’re going to engage the employer to see if that can be remedied,” said John Aiken, director of labor standards and apprenticeship. “Generally speaking, it’s resolved rather quickly. I can think of one off the top of my head where there wasn’t a lock on the door or something like that, and people could come in and out, and they added a lock.”

In one case, the employer was found to have violated WESA and retaliated against a nursing employee and was required to pay back wages, compensatory damages and to re-hire the worker.

Advocates say the new laws are a step in the right direction, but they worry there isn’t enough awareness of their provisions among employers or new moms. In the U.S., discrimination against breastfeeding employees is widespread despite laws in place to protect them, according to the UC Hastings report.

Learning the law

Pierce alleges when she requested breaks to pump milk, managers would deny them,  grant them but push them back, or leave the sales floor so she couldn’t ask for permission to take a break. When she was allowed to pump, she found that it took longer than the 15 minutes she was given to set up, pump and then clean the equipment. She started looking into her rights when a coworker pulled up the text of the law on his phone.

“He pulled it up on his phone and he’s like, ‘Right here, it says you get a reasonable amount of time,’” she said. Ultimately, she contacted human resources.

It took a long time to hear back, but when she did, the department told Pierce she could take longer than 15 minute breaks to pump, but if she did, she had to clock out for a full 3o minutes, according to the complaint. After she contacted human resources, she alleges her managers continued to make it difficult for her to pump.

As things continued, she called human resources again to explain her situation and say she felt she needed to quit. She was offered a possible transfer to another store, but never heard more on the subject. By that time, she felt the company had had enough time to fix the situation and hadn’t, the complaint says. Aria’s weight had gone from about the 26th percentile at birth to the 1.7th percentile.

Christy Hall, Pierce’s attorney through Gender Justice, says they decided to file a lawsuit instead of going through the Department of Labor and Industry because Pierce had tried to call attention to the issues and get them fixed.

“Rachel had experienced so much of trying to get the workplace to fix things, and didn’t have any trust that they would. It had already had such an impact on her family and her kid that she felt like (she needed) to quit,” Hall said.

What also struck Hall about Pierce’s case was that she was working in retail — an industry that tends to have more rigid scheduling than many office jobs.

“It’s important for those less flexible workplaces to know they also have to follow the law,” she said.

Hall hopes Pierce’s case can provide some clarity to the law surrounding nursing breaks.

She believes in addition to protection under WESA, such breaks are protected under the older Minnesota Human Rights Act, which prohibits employment discrimination based on sex. Still, she said, without specific parameters surrounding nursing breaks, anti-discrimination laws aren’t enough. WESA, she said, is an improvement, but she hopes Pierce’s suit could bring clarity to its requirement of a “reasonable” break time.

Starting over

It’s been more than a year since Pierce left the Shane Co. Aria is now 2 years old. Pierce’s then-boyfriend is now her husband. And she’s working as a nanny, which represents a significant lifestyle change — and pay cut — from her previous work in retail.

“I didn’t go to school for early childhood development. I’m not a teacher. That’s not — that wasn’t my career path,” she said.

She’s grateful to be able to spend days with her daughter as she nannies, a job she also likes. But she feels she had to give up her career. She and her husband hope to have more children, but she can’t see going back to work in a situation where she’d have to pump.

“I’d worked very hard to climb up the ladder at different companies … to become a manager, that’s what I saw myself doing,” Pierce said. “Having to quit because of all the circumstances, I’m now going to start completely over.”

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