Mom Loses Case Over Unauthorized 10 a.m. Breast-Pumping Bathroom Break

wpm
Sep 1, 2009 7:53 AM CST

I don’t think the issue is the model of the breast pump.  I don’t know too many women, myself included, who would be comfortable pumping in public, let alone in front of their co-workers a couple times a day.  Maybe a better lesson from this would be to provide adequate breaks and locations for working mothers to pump.

Flag this comment

Lincoln
Sep 1, 2009 11:13 AM CST

MCLEOD:

“Better, stronger, faster”  are not adjectives I ever want applied to my breast pump.

Flag this comment

Jim 2009-09-01-Tu 14:21-14:33 -0400 (an OH guy)
Sep 1, 2009 12:33 PM CST

Her primary error was speaking to an attorney AFTER the nuclear dust settled from her conduct and subsequent termination.

  Her civil action died at the sumary judgment stage. Three of seven justices did NOT want to opt for discretionary review. And in final opinion, Justice Lanzinger opined that review had been improvidently granted.

  I suggest that were one to read the briefs, watch the oral argument and read the per curiam + the concurring and dissenting opinions, a different focus and angle of light is revealed.

  The briefs may be viewed from the docket URL.
——————————————————————————————————-
URL’s to (1) docket, (2) oral argument and (3) opinion of Allen v. Totes Isotoner Corp. Butler App. No. CA2007-08-196

1. DOCKET 2008-0845
http://sc.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type=3&year=2008&number=0845&myPage=searchbycasenumber.asp

2. ORAL ARGUMENT STREAMLINE ARCHIVE
http://www.ohiochannel.org/media_archives/supreme_court/media.cfm?file_id=118782&

3. SLIP OPINION 2009-OHIO-4231
http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-Ohio-4231.pdf

Flag this comment

Nebraska
Sep 1, 2009 10:51 PM CST

To Lincoln at #4:

No need to go ALL CAPS on McLeod.  He’s just spent so much time posting his inanities on this site instead of [allegedly] practicing law that he’s never seen a breast.

Flag this comment

B. McLeod
Sep 3, 2009 8:27 PM CST

#8 is confused.  You don’t see that many breasts while practicing law.  Must be thinking of medicine.

Flag this comment

KBN
Sep 4, 2009 6:14 AM CST

The company argued, “Totes has taken the position since the beginning of this case that it terminated the plaintiff (Allen) for a proper reason, and that’s that she took unauthorized work breaks, regardless of her sex or condition.”  They, and the court, totally miss the point.  The break was medically necessary BECAUSE of her condition.  If she did not pump when it was needed, she would leak, her breast could harden and become extremely painful, and her milk supply could dry up leaving her unable to feed her child.  A company could not fire you for running to the bathroom if you had explosive diarrhea, could they?  If a medical condition necessitated the short break, it should be okay.

And a schedule is not realistic.  Baby’s feed at different times and often change their schedules without warning.  If her 5-month-old did not feed before she left for working that morning, she would have had to pump much earlier than “normal.”  The court missed the ball here. 

Regardless, the company acted unreasonably in this situation and the public should organize a boycott of that company.  Luckily, I live in a warm climate and can go without Totes/Isotoner gloves.  Someone call Dan Marino…

Flag this comment

jesse skipper
Sep 4, 2009 7:10 AM CST

This is the kind of nonsense employee’s discrimination lawyers face all the time, albeit usually in federal courts.  It’s dismaying to see an Ohio state court accept the same rubbish.

As an earlier poster said, breast pumping is of similar urgency and unpredictablility as using the restroom.  Furthermore, any sensible person knows that, even to the extent there was a rule requiring permission to pump at a certain time, these kinds of rules are routinely - in fact, virtually always -  ignored, so long as the supervisor doesn’t want to fire you for some other reason.  No one with a functioning brain stem could conclude other than that it is more likely than not that this supposed rule infraction was a pretext for some other reason for termination.  At the very least, it should be a jury question.  In this case the reason advanced by the plaintiff was discrimination for the pumping itself.  If these are the only two possibilities, then it should surely be a jury question as to which was true.  On its face, absent some evidence pushing me one way or the other, if I were a juror I’d conclude it was the pumping itself.  Failing to adhere to a previously dictated schedule just isn’t a credible reason.

Another instance of the lack of respect for the right to jury trial when it comes to employment cases.

Flag this comment

silencedogood
Sep 4, 2009 7:34 AM CST

How long was she in there?  Unless she had other issues and this was the last straw or was constantly working the pump this strikes me as similar to going to the bathroom—when nature calls you have to pick up the phone.

Flag this comment

B. McLeod
Sep 4, 2009 7:51 AM CST

Since first reading this story, I have reviewed FDA and multiple manufacturer sites for data on breast pumps.  I conclude this is indeed an area where the technology needs to be updated.  The current lines are designed to be needlessly bulky and conspicuous.  Even with my limited knowledge of biophysics, it occurs to me that there is no reason the storage receptable should need to be directly attached to the breast shield and pump unit.  It should be possible to integrate the breast shields with a bra structure, and have a few feet of flexible plastic tubing to carry the expressed milk to a fashionably appointed receptable worn on a belt.  The pumping unit (which for this application, should be an electric one) could be modified from one of the many existing ones that use 6 or 8 AA batteries, and could also be worn on the belt.  Pumping cycles would betriggered simply by pressing a button to activate the pumping unit, and the only outward sign of pumping in progress would be some noise from the pumping unit.

Flag this comment

Joe
Sep 4, 2009 8:04 AM CST

I don’t want to see a mom breast pump in the work place - take that crap somewhere else.  If I saw that, I’d file for sexual harrasment myself.

Flag this comment

KHC
Sep 4, 2009 8:18 AM CST

#17: I have to admit that I am very annoyed at the obtuseness of your post. The fact that you didn’t successfully ever pump for an extended period of time proves you can’t understand what those of us who have pushed ourselves to do this have been through. I’m sure you can wittily retort whatever you like on the point, and sound very superior doing it, but the facts are: going 5 hours (i.e., from 5 am to 10 am, as in the instant case) without relieving the breast, if you are fully committed to breastfeeding and have been nursing the child at home at regular intervals, will be extremely painful for the woman. I have been at work under these circumstances and it felt like my boob was going to explode. I got mastitus twice - it isn’t unusual at all. The breast actually gets red - as in bright, blood red - and is hot to the touch. Not regular body temp hot, but you feel it burning.

On the other hand, if you casually nurse here and there, and aren’t really committed to it, then it isn’t going to bother you much to go an extra hour or so. It is all about supply and demand. If you had nursed beyond 2 or 3 months, you would know that. Nevermind the small factoid that your children would have had the antibodies they need, but hey, I wouldn’t want to get all judg-y on you!

McLeod: You have the logistics down in your post (#18), but you’re missing the point of the source of discomfort. Not your fault - you have never nursed yourself, obviously. But to add to your little file of info that you’re developing on this topic, you need to know that the process of nursing involves something called “let down” that is a release of the milk ducts. It isn’t entirely automatic. Have you ever not been able to pee when someone was standing at the urinal talking to you? Like stage-fright? Kind of similar. Plus, unless the woman went to the bathroom first to hook the whole contraption up, there is no way to do it entirely discreetly. If she’s in an office area facing a wall, maybe she can shield herself enough - I’ve actually had to do this in a previous shared office situation - thankfully I shared with another mom who was totally cool about it. But in a large room facing other people, it would be very hard to hook it all up, even with the bustier/bra thing, which I have also used. And, again, the let down would be difficult in a crowded room. But I think it’s great you’re trying.

Flag this comment

KHC
Sep 4, 2009 8:23 AM CST

And Joe (#21): I hear your point, but it also would apply to those who take smoke breaks, or diabetics who take insulin breaks, etc. Do you only draw the line at women who need 15 mins to pump twice a day for 6-9 months?

Flag this comment

Jennifer
Sep 4, 2009 8:25 AM CST

As a currently breast feeding mother who pumps at work, I take offense to the notion that I’m not working as hard as the guy next to me.  Try typing an email one handed while having a pumping mechanism hooked up to you.  I, luckily, have a private office where I can pump privately and as often as needed.  The choice to breast feed your baby is a personal one and one that needs to be respected by your employer.  Accomodations should be made and be flexible.  This is not a difficult requirement for employers any more than an accomodation for religious or diability reasons.

Flag this comment

working mother
Sep 4, 2009 8:27 AM CST

I also worked after having 2 babies.  The pain was unbearable and the leaking extreme.  However I was fortunate enough to have a private office.  I was able to close the door, lock it, and pump when necessary.  No one had to cover my work load, I continued to work with the pump on.  My supervisor was a woman and mother who had to do the same thing.  Accomodations can be made, and I have never met any breast feeding mother who would “take advantage” of these breaks.

Flag this comment

KB
Sep 4, 2009 8:35 AM CST

I have never commented on these blogs before, but I have to say that I am so outraged that very few seem to get it.  Doesn’t everyone have some responsibility that may create the need for flexibility?  This really shouldn’t come down to “them” vs. “us” but really our need as a society to provide the best care for the next generation that will be taking care of us in nursing homes and hospitals when we are old.  I don’t want to get into a debate over political structures, socialism etc., but it seems that European and other industrialized countries have a more balanced attitude toward the value of women in the workforce.  It is difficult for a mother of 6 weeks to take only a couple of breastfeeding breaks a day, when that baby could be eating every couple of hours.  That only encourages formula use, which according to the AMA is contributing to many health and other lack of immunities later.  Although, I don’t want to get into a debate on formula versus breast milk, as all situations are different.  But when you take away a choice for a women or make it so difficult that she effectively has no choice, then that is the issue.  When most couples need to both work to support themselves, and with women soon to account for over 50% of the workforce, this issue is bigger than this one case—it is illustrating the gap in pay, flexibility, the stereotypes of women, parents, and the fact that most working mothers in the the US go back to work after 6 weeks, if not sooner.  While FMLA may be available, the ramifications of no pay may be the main issue.  And, quite frankly, the likely readers of this blog are educated and likely have more flexibility than a waitress, factory worker etc.  But, if we really care, we have to do what others do—take it to the media and let the PR departments of Totes/Isotoner (they have an 800 customer service number) or other group know that while there is a disconnect between where breastfeeding is today and where I hope it will be in 5 years, that the marketing and PR side of it doesn’t make it worth their while to be inflexible and unaccommodating.

Flag this comment

Susan
Sep 4, 2009 8:39 AM CST

Babies can eat formula.  They dont need breat milk to be healthy.

Flag this comment

Hadley V.Baxendale
Sep 4, 2009 8:48 AM CST

the employer seems unreasonable to me.  The court seems stupid

Flag this comment

Becky
Sep 4, 2009 8:52 AM CST

I do not know where to begin here.  Breastfeeding is difficult enough without the added issue of an employer not willing to work with the breastfeeding employee.  Perhaps the solution here is to change the FMLA to provide for one-year paid time off for new mothers, similar to what is common in Europe.

Flag this comment

kB
Sep 4, 2009 8:56 AM CST

I agree it is a personal choice whether to use formula or breast milk; however, breastfeeding is linked to decreased risk of breast cancer in women, increased immunity in babies, and a decrease in future obesity rates—all of which are increasingly important to the future of the US society.

And, to all the discussion about breast pumps and a better breast pump, even if one could wear it all the time discreetly, it would likely not be comfortable, as there needs to be “breathing” there in between pumping—a damp atmosphere increases problems like soreness and inflammation.  And, do keep in mind that the milk was meant to be “used” right away, so there needs to be a way to get it cold immediately if not going to be used within 4-6 hours. There are ways to do that, but no magic hidden milk line down your pants and into specially built shoes that have a hidden compartment and built in refrigerator.
It is great we want to solve everything with technology, but that isn’t always the answer.  Sometimes, the most simple answer is best—give 10 minute breaks but require that work is done or “made” up if it is job that you can’t “work” while pumping. 
It is easy to come to a conclusion that, “I did it X way, so she/he can deal and do it the same way.  A and B didn’t happen to me so she/he is obviously a whiner or just plain wrong.”  It is that kind of attitude that doesn’t allow for creative thinking or human kindness in many types of subjects—not just this one.

Flag this comment

flalaw2003
Sep 4, 2009 9:01 AM CST

Comment removed by moderator.

Flag this comment

Molly McDonough
Sep 4, 2009 9:10 AM CST

This is a reminder that the ABA Journal comment policy bars name-calling and personal attacks.

Flag this comment

mel
Sep 4, 2009 9:15 AM CST

I haven’t read any of the court papers, so i’m just going on the facts that i’ve gotten from reading other people’s comments. 
While it may be true that the need to lactate is just as unpredictable and hard to schedule as going to the bathroom, the fact is this employee worked out a schedule, and when she saw it didn’t work, she unilaterally changed it and didn’t tell her employer.  Had she gone to her employer and explained why it is difficult for her to follow a schedule and that she may just need to go when she has to go, he would have been obligated to accomodate her.  Of course employers are required to be flexible, but there’s no anti-discrimination law I know of that requires them to be mind readers.

Flag this comment

RRS
Sep 4, 2009 9:25 AM CST

I agree with post #30 wholeheartedly.  I just want to add that this is not just a matter of women being 50% of the workforce or providing 50% of the support at home.  Many women, including myself, are the primary breadwinners in our households these days.  I chose not to breastfeed, but, others should be free to do what they think is best for themselves and their families.  Workplaces must adapt 100% to allow women to compete on an equal playing field with men.  It’s not just a matter of equity for women and their families, it’s also necessary for us to harness the talents of 50% of our workforce so each of our workplaces can provide the best services to our clients and so all business can compete as effectively as possible.  Isn’t this what our capitalistic system is supposed to be about? Failing to accomodate women’s unique needs will only result in mediocrity in the workplace.  Those workplaces that accomodate women the best will thrive the best.  For these policy reasons it continues to befuddle me why our laws do not provide that anything short of 100% accomodation to their needs should is de facto gender discrimination.  The only rationale that makes sense to me is the perpetuation of the misogyny from the 1960’s (and earlier)which is so vividly dramatized in Mad Men.  It’s time to update our laws to meet our current realities!

Flag this comment

AndytheLawyer
Sep 4, 2009 9:40 AM CST

Thanks to the ABA for helping us all keep abreast of this situation.  The article was downright titillating.

Flag this comment

Lawyer Mom who Pumped for my 2 babies
Sep 4, 2009 10:15 AM CST

#38 KB ... BRAVO! I echo your comments. #47 rrs - you too.

Flag this comment