Labor & Employment Law Daily Employee not allowed to breastfeed at work plausibly alleged violation of Hawaii antibias law
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Friday, December 11, 2020

Employee not allowed to breastfeed at work plausibly alleged violation of Hawaii antibias law

By Marjorie Johnson, J.D.

Ruling that the employee plausibly alleged she was barred from engaging in statutorily protected activity, the court found that because she asserted her baby was rejecting drinking from a bottle, “her only realistic option to feed her child was to breastfeed directly.”

A nursing mother who claimed that she was forced to resign after her employer required her to switch from a part-time to full-time schedule, but denied her request to breastfeed her bottle-rejecting baby in the workplace, advanced her constructive discharge claim under Hawaii’s antibias law. A federal district court in Hawaii denied the employer’s motion to dismiss since the provision of the statute at issue “unambiguously prohibits employers from discharging or penalizing ‘a lactating employee because the employee breastfeeds or expresses milk at the workplace’” (Summer v. American Savings Bank, F.S.B., December 7, 2020, Seabright, J.).

Began with part-time schedule. Before being hired as a digital transformation manager, the employee asked for a hybrid schedule to accommodate her breastfeeding schedule in which she would work 20 hours at the worksite and 20 hours from home. The employer denied the request, but allowed her to begin employment on a part-time basis, working 25 hours per week in the office. Once she started working, she discovered that her baby was rejecting expressed milk from a bottle. However, her part-time schedule allowed her to breastfeed directly.

Required to work full-time. About five months later, the employee was advised that she must either begin working full-time at the workplace or resign. Because her baby was still rejecting expressed milk, she agreed to work full-time provided that she was allowed to breastfeed at the workplace. She explained that her husband would be able to drop off their baby at the workplace two to three times per day for feeding.

Denied request to breastfeed at work. The employer rejected her request as unreasonable, claiming that its workplace was a “secured facility” where “non-teammates,” including infants, were not permitted. Instead, she was told that she could “take reasonable break time” to breastfeed her baby outside of the workplace, “wherever that may be.” Feeling that she had no other option, she resigned and brought the instant action asserting that the employer engaged in “unlawful discrimination” under the state’s antibias law.

Statutory interpretation. The employee alleged that she was forced to resign because she was “a breastfeeding mother who expressed a desire to breastfeed at the workplace.”For the purposes of its motion to dismiss, the employer did not dispute that it prohibited the employee from breastfeeding in the workplace or that she resigned as a result. Instead, it argued that prohibiting breastfeeding in the workplace did not constitute discriminatory conduct under the Hawaii statute. Accordingly, its motion turned entirely on statutory interpretation.

Hawaii Revised Statutes (HRS) § 378-2(a)(7) makes it an unlawful discriminatory practice: “For any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote, or penalize a lactating employee because the employee breastfeeds or expresses milk at the workplace. For purposes of this paragraph, the term ‘breastfeeds’ means the feeding of a child directly from the breast.”

Unambiguous language. While there was currently no caselaw interpreting the provision at issue, the court found that the statutory language was unambiguous. Specifically, the statute “protects lactating employees from being discharged or otherwise discriminated against ‘because’ they ‘breastfeed[] or express breastmilk at the workplace.’ HRS § 378-2(a)(7) (emphasis added).” Accordingly, breastfeeding at the workplace constitutes a protected activity under the antibias statute.

Expressing breastmilk not viable option. Based on the allegations in her lawsuit, the employee “alleged direct evidence of discrimination in that [the employer] explicitly prohibited her from breastfeeding in the workplace.” Notably, the court found no need to address whether a prohibition on breastfeeding at work would violate the statute where expressing breastmilk at work was a viable option. Because the employee asserted that her baby was rejecting drinking from a bottle, “her only realistic option to feed her child was to breastfeed directly.” Thus, by allegedly requiring her to either work full-time or resign—while denying her the option to breastfeed in the workplace—the employer impermissibly barred her from engaging in any form of protected activity under the state statute.

The court also rejected as “nonsensical” the employer’s contention that the employee never engaged in protected activity because she never actually breastfed at the workplace, but only expressed a desire to do so. An employer “cannot escape liability for discrimination by prohibiting the protected activity altogether.” Moreover, separate statutory requirements related to accommodations for expressing breastmilk were “in no way inconsistent with the unambiguous protection that § 378-2(a)(7) extends to employees who breastfeed (or wish to do so) at the workplace.”

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