Dive Brief:

• 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 (Clark v. City of Tucson, No. 14-02543 (D. Ariz. April 12, 2019)).
• Carrie Ferrara Clark sued the City of Tucson Fire Department, alleging that it violated the Fair Labor Standards Act (FLSA) and Title VII of the Civil Rights Act of 1964 when it failed to provide her with an appropriate lactation room on a consistent basis and when it retaliated against her for complaining. Among other things, her complaint 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 as needed, but Clark explained that awakening her supervisors every 2 to 3 hours seemed unreasonable. The HR manager then allegedly told her "your pumping seems excessive to me"; when Clark replied that such a schedule was normal for a newborn, the manager replied "well, it seems to me that you're not fit for duty." Clark said she used vacation and sick leave time to avoid working at stations that did not have a private space for lactation.
• A jury agreed with her, 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. According to local media, the city plans to appeal the verdict.

Dive Insight:

The FLSA requires that employers provide non-exempt employees a private space where employees can pump breast milk and reasonable break time to do so for one year after a child's birth. Employers do not have to pay nursing mothers for these breaks, but if an employee uses her paid breaks to pump, the employer must still compensate that time. State law can be a factor, too; several several states have added additional requirements and protections.

In addition to the FLSA, Title VII liability can be a factor in such claims. Discrimination on the basis of pregnancy, childbirth or related conditions constitutes unlawful sex discrimination for covered employers under Title VII, the U.S. Equal Employment Opportunity Commission says. In this instance, the jury found that Clark experienced discrimination on the basis of pregnancy and the related condition of breastfeeding and that she was subjected to retaliation in violation of Title VII.

In previous interviews, experts told HR Dive that employers may even have reason to go above and beyond the FLSA's minimum requirements. A space with a comfortable chair, a locking door, an outlet and a table can go a long way, they said. The experts also suggested that the space be available only to nursing mothers so that it isn't taken over by employees needing to make phone calls or those looking for a place to take a quick break. For employers without a room to spare, pre-made free-standing spaces are available, they said. And perhaps most importantly, they suggested employers draft and communicate a lactation policy and train managers about lactation accommodations.

The law, of course, makes exceptions if the lactation space requirement creates an undue hardship for the business. But with today's tight labor market, some say lactation accommodations amount to a retention strategy. Millennial moms believe they should be able to pump in the workplace, experts say, and in a study conducted late last year, 47% of new moms said they had considered a job or career change because of concerns over pumping at work.