Jury awards $3.8M to woman; Employer argued her breastfeeding schedule was 'excessive'

An Arizona jury has sided with a breastfeeding paramedic, awarding the nursing mother $3.8 million for her lawsuit alleging she wasn't provided a lactation space as required by federal law.

Carrie Ferrara Clark sued the City of Tucson Fire Department, alleging that it violated federal employment laws when it failed to provide her with an appropriate lactation room on a consistent basis and when it retaliated against her for complaining about the issue. Her lawsuit alleged that the fire department's scheduler said he didn't believe she deserved any special accommodations. The HR manager also recommended that she use fire chiefs' and captains' bedrooms for pumping as needed, but Clark explained that waking up her supervisors every 2 to 3 hours seemed unreasonable. HR then told her "your pumping seems excessive to me.” When she tried to explain that such a schedule was normal for a newborn, the HR manager replied "well, it seems to me that you're not fit for duty."

A jury found the employer liable for discrimination and retaliation, awarding her $3.8 million. It found, among other things, that the employer discriminated against her because she was breastfeeding and that it assigned her to fire stations that did not have a space that complied with federal requirements for expressing breast milk.

The Fair Labor Standards Act (“FLSA”) states that employers are required to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

Employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated in the same way that other employees are compensated for break time.

Learn More:

• US Department of Labor Fact Sheet re Break Time for Nursing Mothers under the FLSA

• Verdict Form

Flight Attendants File EEOC Charge Alleging American Airlines Discriminates Against Women

AA Accused of Discrimination

The union that represents more than 27,000 American Airlines flight attendants has filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) alleging that the airline's attendance policy discriminates against women. The flight attendants charge that the attendance policy "fast tracks" flight attendants — a group that is 75% female — to potential discipline and discharge actions, while pilots — who are overwhelmingly male — are not subject to the policy.

This type of case is called a “disparate impact” case. Employment actions and policies can be problematic even if they do not intentionally discriminate against a protected group of workers. The law recognizes both "disparate treatment" discrimination (intentional acts of overt discrimination) and "disparate impact" discrimination (neutral policies and practices that have a disproportionate, adverse impact on a protected group and that cannot be justified by business necessity).

While disparate impact cases can come up with regard to any protected class (in this case, gender) they actually most often arise in the context of alleged age-based discrimination. Layoffs are often alleged to be based on age — a layoff targeting high-earning employees might have a disproportionate impact on long-tenured employees who happen to be older, for example. Similarly, recruiting efforts that focus on college campuses might unfairly exclude older workers.

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Same-Sex Spouses Enjoy FMLA Protection In All But Four States - And Yep, Texas is One of the Four

There has been a good deal of reporting over the last month or so about the Department of Labor's recently-implemented final FMLA rule that expanded the definition of “spouse” under the FMLA to include employees in legal same-sex marriages. Both employee-side and employer-side groups praised the new rule because it brought uniformity to FMLA regulations.

Although this rule took effect on March 27, 2015, a federal district court ruling in Texas left the status of the new rule in limbo.

After the DOL issued its final rule, Attorneys General in Texas, Arkansas, Louisiana, and Nebraska filed suit in a federal district court in Texas asking the court to strike down the DOL’s final rule. The court granted an injunction and halted the DOL’s enforcement of its final rule. Given this ruling, it was uncertain what the DOL would do. The agency has since announced that it will not enforce the rule in the four states of Texas, Arkansas, Louisiana and Nebraska.

In a court filing, the DOL said: “[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .”

However, the DOL confirmed it will enforce the rule in the remaining 46 states. 

Flexible Working Arrangements Aren't Just for Women

For years, conventional wisdom held that women far more than men took advantage of flexible working arrangements to balance work/life responsibilities. Now comes a new study revealing that male employees feel equally empowered to use programs that allow flexibility in how, when and where work happens.

The Working Mother Research Institute found that 77% of men have some degree of flexibility in their work schedules, and that 79% of those men feel comfortable using flex benefits.

The study, titled “How Men Flex: The Working Mother Report,” found that 59% of working dads would choose part-time work if they could still have a meaningful career. However, 36% of them believe their organization’s leaders would look down on men making that choice.

A different study, by the Society for Human Resource Management, found that about half of U.S. employers formally offer part-time and reduced-hours schedules. Flex-time—in which employees can vary their schedules as long as they’re at their workstations during core hours—is an option for 54% of employees. Telecommuting is available in 39% of organizations.

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