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Friday, Aug 28, 2009 6:29 PM UTC

Lactate on your own time, lady

The Ohio Supreme Court affirms the right of Totes/Isotoner to fire a woman for pumping breast milk as necessary

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Topics: Broadsheet,

On Thursday, the Ohio Supreme Court affirmed that Totes/Isotoner had the right to fire breastfeeding mother LaNisa Allen for taking breaks to pump milk. Yeah, you read that right. Timothy P. Reilly, attorney for Totes/Isotoner, told the Columbus Dispatch, “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.” Because unauthorized pumping, clearly, can be divorced from one’s “sex or condition.” This would be the rare instance in which I find myself tempted to type “LOL,” except the Supreme Court used essentially the same reasoning: It was on Allen to prove that the stated cause for her dismissal (failure to follow directions) was a pretext for discrimination, and technically, she didn’t. Ergo, the court decided not to bother addressing the thornier question of whether lactation counts as a pregnancy-related condition, which would be protected under the state’s anti-discrimination laws.

In the strictest legal sense, the ruling is logical: Allen admitted she took unauthorized breaks, and that’s a firing offense. If she can’t prove that someone said, “Ha! Now’s our chance to get rid of her for being a woman!” then apparently, she can’t prove discrimination. But it’s manifestly weaselly to suggest that her “insubordination” can somehow be separated from the fact that she was lactating, especially since they were responding to a decision that included this colossal eye-roller:

Allen gave birth over five months prior to her termination from [Isotoner]. Pregnant [women] who give birth and choose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination.

Of course not.

Chief Justice Thomas Moyer and one of the court’s three women, Justice Maureen O’Connor, at least had the decency to “concur in judgment only,” meaning they agreed that Allen hadn’t technically proved discrimination but believe lactation should, in fact, be covered under the law against pregnancy discrimination. Yet the only straight-up dissenting opinion came from Justice Paul Pfeifer, who wrote, “Seriously? Are you kidding me with this?”

OK, no he didn’t. But he did say that even if you insist on separating Allen’s extra breaks from her condition as a lactating mother, then they should be regarded no differently than unscheduled pee breaks. “There is no evidence in the record about any limit on the length of unscheduled restroom breaks and no evidence that employees had to seek permission from a supervisor to take an unscheduled restroom break. There is evidence only that unscheduled bathroom breaks were allowed and that LaNisa Allen was fired for taking them. What made her breaks different?” Ding ding ding!

More importantly, Pfeifer gets to the heart of why the court’s refusal to address whether lactation counts as “a condition related to pregnancy” is so incredibly disappointing:

We accept cases not necessarily because of how the result might affect the parties in the individual case, but because of how a holding might affect other persons similarly situated. Ohio’s working mothers who endure the uncomfortable sacrifice of privacy that almost necessarily accompanies their attempt to remain on the job and nourish their children deserve to know whether Ohio’s pregnancy-discrimination laws protect them.

Yeah, they do. And furthermore, LaNisa Allen deserved not to be fired because her employer expected a lactating mother to go five hours without expressing milk. Totes/Isotoner may have the law on their side by a hair, but that doesn’t change the facts. LaNisa Allen was terminated for taking 15 minutes a day to relieve a painful and distracting condition that arose because she believed breastfeeding was best for her child and thus chose to maintain her body’s natural post-pregnancy state. Lactation is, in fact, related to pregnancy, even if some women halt it earlier than Allen did. And breastfeeding discrimination is, in fact, gender discrimination, unless I missed the news that men can breastfeed now. That anyone could argue otherwise with a straight face only highlights how absurdly reluctant some people are to acknowledge and oppose blatant sexism. 

 

Kate Harding is the co-author of "Lessons From the Fatosphere: Quit Dieting and Declare a Truce With Your Body" and has been a regular contributor to Salon's Broadsheet. More Kate Harding.

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