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In-House Counsel: 5 Reminders About Breastfeeding Laws

By Aditi Mukherji, JD on January 28, 2014 | Last updated on March 21, 2019

By now, you may have heard about the Victoria's Secret customer in Texas who was not allowed to breastfeed in a fitting room.

The story, as reported by The Blaze, should give pause to in-house counsel to consider revisiting company policy and staff training to make sure everyone is up to speed on the legal status of breastfeeding -- both with regard to customers and employees.

Here are five breastfeeding-related legal reminders every corporate counsel should recall:

  1. Public breastfeeding. According to the National Conference of State Legislatures, there are at least 45 states with laws that protect a woman's right to breastfeed in public. Most states grant a mother the right to breastfeed in any location -- public or private -- in which she is authorized to be. It's only in states without any laws on the books where it's permissible to ban breastfeeding at a business. So in the case of the Victoria's Secret customer, under Chapter 165 of the Texas Health and Safety Code, the woman should have been allowed to breastfeed in the fitting room because it was a space in which she was authorized to be.
  2. "Cover up" policies. Some states require women to be discreet while nursing (i.e., to "cover up"). As we learned from the in-flight breastfeeding snafu, in-house counsel should remind their clients that they can't impose additional restrictions, including "cover up" rules, on nursing mothers when they exceed the scope of state law. Bottom line: Stop asking nursing mothers to cover up in states that don't require it.
  3. Breastfeeding in the workplace. According to the NCSL, at least 24 states recognize the right to breastfeed in the workplace. Under Section 7 of the Fair Labor Standards Act, employers with at least 50 employees must provide non-exempt nursing employees break time to express milk, albeit unpaid, for up to 1 year after the birth of a child. An employer must also "provide a place, other than a bathroom, that is shielded from view" for the employee to express breast milk.
  4. "Lactation discrimination." A federal judge in Texas dismissed an alleged discrimination case in which a Houston woman was fired for requesting permission to pump milk at work, ruling that the employer's decision constituted neither pregnancy discrimination nor sex discrimination. The judge ruled that "lactation is not pregnancy, childbirth, or a related medical condition." But the Fifth Circuit recently reversed the lower court's ruling. "Lactation discrimination" is a developing area of employment law, so keep an eye on it as it evolves.
  5. Staff training. Victoria's Secret issued a public statement following the incident, explaining that it has a long-standing policy of welcoming nursing mothers into the store. If a staff member genuinely dropped the ball here, it's a teachable moment for the lingerie powerhouse's in-house counsel (and you, too!): training, training, training! Get your staff on the right page -- literally, in an updated version of the employee handbook, paired with training.

Breastfeeding laws are far from clear-cut. But as the Victoria's Secret debacle clearly demonstrates, limiting a woman's ability to breastfeed can lead to many more uncomfortable consequences than catching a glimpse of an exposed breast.

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