Tuesday, February 10, 2015

The Supreme Court and the Men Who Lactate

How's that for a title? You can imagine my surprise when I saw a tweet:
How in the world did I miss that!? A friend also emailed me a similar story: Breast-Feeding Mom Loses Discrimination Case Because Men Can Lactate Too. There's some tiny little smidgen of truth to the stories, buried under a mountain of . . . I'll call it "questionable journalism."

We'll start with the tiny bit of truth. In Ames v. Nationwide, the district court noted in a footnote that:
A plaintiff could potentially succeed on a claim if she alleged and was able to prove that lactation was a medical condition related to pregnancy, and that this condition, and not a desire to breastfeed, was the reason for the discriminatory action(s) that she suffered . . . .  Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.
The point being that lactation is not necessarily a "pregnancy-related condition" protected by the Pregnancy Discrimination Act - the plaintiff must provide evidence to establish that. This is not the same as holding that "firing a woman for breastfeeding isn’t sexist because men can lactate." More importantly, the plaintiff lost for entirely different reasons.

Despite the headline, the employer did not fire her. She resigned! She tried to argue constructive discharge, but the Court held:
Ames did not follow known internal grievance procedures to lodge her complaint. Indeed, she did not even attempt to do so. Instead, she assumed the worst and surmised that her only reasonable option was to tender her resignation. Under existing law, Ames cannot prevail on her constructive discharge claim.
Well, that's just plain more boring than "firing a woman for breastfeeding isn’t sexist because men can lactate." And then there's this problem - the Court also found that the employer did not treat her in a discriminatory manner:
Providing a letter explaining the procedure for obtaining access to a lactation room is not an act of discrimination. When, on July 19, 2010, Ames found out that she would not be able to use a lactation room on that day, Hallberg offered her use of one of the wellness rooms instead. Hallberg also sent an email requesting that Ames’s request for access to a lactation room be expedited. The Court cannot agree that these actions exhibit any of the inherent characteristics of discriminatory behavior. To the contrary, Hallberg’s actions portray her as someone who was exceptionally sensitive to Ames’s recent childbirth and breastfeeding concerns.
Well, that's not gonna generate page clicks.

What happened on appeal? Well the Slate article claims that:"the Supreme Court . . . uph[eld] a federal appeals court ruling against a breast-feeding mother . . . . Part of the court's reasoning was, according to Galen Sherwin of the American Civil Liberties Union, 'that even if Angela had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances.'"

Yeah, except that the Eighth Circuit did not address the male lactation issue at all. Not even a little. No mention whatsoever. Instead, the Eighth Circuit upheld the district court's decision that the employee was not constructively discharged.

And the Supreme Court? The Supreme Court decided not to hear an appeal from the Eighth Circuit. That means it did not in any way rule on the Eighth Circuit decision, which itself did not in any way address male lactation.

Occasionally, I wish that the media would spend more time covering employment law. When they take a footnote that is probably dicta from a trial court opinion and fabricate a Supreme Court ruling from it, I rethink that position. Although, we did learn something . . . men can lactate! . . . oh, and if you want to sue your employer for discrimination, don't resign unless you really have to.

End note: I should note that Donna Ballman was not the author of the article she tweeted, she was merely passing along coverage of this case to her Twitter followers. She provides her own, excellent coverage of employment law issues on her own blog and also on AOL Jobs.

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