Matt Wittmeyer / for NBC News
Lyla, Bobbi Bockoras' nearly one-year-old daughter, plays at the table at her Smethport, Pa., home. Bockoras filed a lactation discrimination lawsuit against her employer.
When Bobbi Bockoras returned to work at a Port Allegany, Pa., glass factory in June 2013 after giving birth, she planned to pump breast milk during breaks so she could continue nursing her infant daughter Lyla.
The 31-year-old palletizer operator knew that pumping at work — in a clean, private, non-bathroom space — was her right under a provision of the 2010 Affordable Care Act (ACA). “I was going to breastfeed, and no one was going to stop me,” she said.
But Bockoras says that Saint-Gobain Verallia North America, the company where she has worked for six years, did not follow the law. Supervisors first told her to pump in a bathroom, she says, and after she protested, they suggested alternatives that also failed to meet federal requirements. Bockoras agreed to use a locker room but says it was covered in dirt and dead bugs and lacked air conditioning.
Making matters worse, she says, she was harassed by colleagues who pranked her and banged on the door while she pumped. Bockoras called the treatment “defeating and exhausting.”
After she complained, Bockoras was temporarily reassigned to alternating day and overnight shifts that interfered with her feeding schedule and impeded her milk production, she claims in a civil suit filed on her behalf last month by the American Civil Liberties Union (ACLU) and the Equal Opportunity Employment Commission (EEOC) against Verallia North America. It’s the first lawsuit brought by the ACLU under the ACA’s breastfeeding provision, which is the first federal law to require employers to accommodate nursing mothers on the job.
Courtesy of ACLU
When Bockoras returned to work after giving birth, she pumped in this room, which she says was dirty with dead bugs on the floor.
Bockoras’ case is one of a growing number of lactation discrimination lawsuits highlighting the need for more accommodation and acceptance for nursing mothers in the workplace, advocates say.
Despite overwhelming evidence supporting the health benefits of breastfeeding, “women who choose to continue breastfeeding when they return to the paid workforce face insurmountable obstacles that can make them choose between their jobs and what is in the best interest of their babies,” said New York-based ACLU senior staff attorney Galen Sherwin, who is representing Bockoras.
Bockoras’ lawyers argue that not only was she discriminated against and not accommodated under the law, but she was retaliated against when her shifts were switched. Verallia North America, which is headquartered in Muncie, Indiana, filed a motion to dismiss the case. The company is “committed to providing a respectful workplace” and “takes its obligations under the law very seriously and is committed to abiding by all federal and state employment laws,” it said in a statement.
Bockoras says her previous dayshift schedule has since been reinstated and that the locker room where she still pumps has been cleaned.
Does breastfeeding discrimination equal pregnancy discrimination?
Under the ACA provision, which amends the Fair Labor Standards Act, companies are required to provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth” and “are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion.” The provision also prohibits retaliation by companies when employees file complaints.
Prior to the ACA, nursing mothers who wanted to pump at work had few rights. An employer could refuse to allow a woman to express milk at work or fire her for doing so.
As more women become aware of their rights under the law, advocates expect lactation discrimination cases to proliferate. “Partly because the ACA offers a new avenue of relief that wasn’t available previously, we’re going to see more claims using that tool to vindicate the rights of women violated on the job,” Sherwin said.
While breastfeeding activists, or “lactivists,” welcomed the ACA provision, they also identified drawbacks. The provision only applies to companies who employ 50 workers or more, and only protects hourly workers, not salaried ones. Further, breastfeeding advocates say it’s unclear whether courts could actually force companies to abide the law. The provision includes no penalty for businesses that don’t comply.
The Department of Labor’s Wage and Hour Division, which investigates complaints under the ACA, can mediate between an employer and an employee, explain to a company what its legal obligations are, or file an injunction to require an employer to comply. It has no authority to fine employers who violate the law.
Since the ACA took effect, the division has concluded 169 investigations related to the nursing mothers provision and found 71 violations, a spokeswoman said.
Matt Wittmeyer / for NBC News
Bockoras gets her daughter, Lyla, ready for dinner.
Bockoras’ lawsuit also argues that her rights were violated under Title VII, an extension of the Civil Rights Act of 1964 that prohibits sex discrimination on the basis of pregnancy. While many medical and legal experts argue that lactation is an obvious result of pregnancy and thus falls under pregnancy discrimination law, some courts have not agreed.
For example, when LaNisa Allen claimed she was fired for taking pump breaks, the Ohio Supreme Court ruled in favor of her employer, Totes/Isotoner in 2009, stating that lactation was not a condition of pregnancy.
In another case, a federal judge in Texas denied Donnicia Venters’s claim that the debt collection agency where she worked, Houston Funding, had fired her in 2009 for requesting to express breast milk on the job. “Lactation is not pregnancy, childbirth, or a related medical condition,” and thus not protected from sex discrimination, U.S. District Judge Lynn Hughes wrote in 2012. His decision was called “disgusting” and “unconscionable” by breastfeeding advocates. (Houston Funding denied that Venters was terminated for pumping at work.)
Now the tide may be turning in favor of nursing mothers. In June, an appeals court unanimously overturned Hughes’ ruling in the Venters case. Three judges affirmed that lactation is a result of pregnancy and therefore, nursing mothers are protected under sex discrimination laws at work. In another victory, a Colorado teacher won damages last September after her school fired her after she asked to express milk at work.
New legislation push to cover salaried workers under law
While lactation discrimination cases wind through courts, some breastfeeding advocates and politicians are trying to strengthen laws to further protect nursing women in the workplace. U.S. Senator Jeff Merkley (D-OR) introduced the Support Working Moms Act in May, which pushes to amend labor law to include salaried workers. He also helped to pass the Oregon law on which the ACA provision was modeled.
“I see it as a cultural transition,” said Merkley, who watched his wife struggle to pump milk at work for their son. “It’s going to take an enormous shift for people to come around to what we understand.”
But while the bills are stalled, advocates are hopeful that nursing moms can win rights faster in the courts. Bockoras’ case is an opportunity for another court to rule that lactation discrimination is sex discrimination, which would help cement women’s right to nurse at work, according to breastfeeding law expert Jake Marcus.
It would be an “obvious and enormous statement to bring the whole matter under the purview of sex discrimination laws,” Marcus said, noting that a ruling won’t necessarily compel companies to implement the ACA requirements nor force penalties on businesses that don’t comply.
Still, Bockoras hopes that her case will help make breastfeeding easier for working women.
Despite some negative reactions to the lawsuit in her small hometown of Smethport, Pa., life continues for Bockoras, who hunts deer and turkey for family meals, and chops timber for the wood stove that warms her home.
When Lyla is older, Bockoras hopes to tell her about her fight. “This is how much I love you,” she said she’ll tell her daughter. “This is how much your health meant to me.”
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This story was originally published on Fri Jan 10, 2014 6:17 PM EST