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Breastfeeding Discrimination – A Win For New Mothers In The 11th Circuit

On September 16, 2017, the 11th Circuit, which covers Alabama, Florida and Georgia, upheld a verdict of discrimination against the City of Tuscaloosa, Alabama. This is an important case for breastfeeding discrimination and maternity rights. Stephanie Hicks had been a narcotics investigator on the city police force before taking maternity leave to give birth to her first son in 2012. Upon her return, she was treated differently and discriminated against due to needing to breastfeed. Among other issues, Hicks was forced to express milk in a locker room, since no lactation room existed at the time. She was also made the subject of demeaning comments and falsified performance reviews. While as of this writing the City of Tuscaloosa has not determined whether or not it intends to appeal the verdict, it is still noteworthy for nursing mothers in all districts.

A Pattern Of Mistreatment

Prior to her maternity leave, Hicks’ performance reviews had been generally favorable, allowing her to rise from uniformed officer to narcotics investigator, even marking her as someone who was capable enough for undercover work. When she returned, she began getting disciplined for minor or made-up infractions, even being demoted back to uniformed patrol. Eventually she resigned, two months after returning from maternity leave, after being forced to wear a bulletproof vest that would leave her at risk of reduced milk production and infection. She believed a pattern of breastfeeding discrimination was developing.

A common theme during trial was a lack of interest in or respect for Ms. Hicks’ need to express milk for her son, who had sustained injuries at birth and needed extra care. At times Hicks, wondered if her colleagues would deliberately schedule work that required her to leave the office at the exact moment she sat down to pump. She was told when she informed her superiors of her pregnancy that no specific policies to accommodate mothers existed, and indeed, her superiors made numerous comments that were recorded about Hicks’ needing to be “got out of there” and calling her sexist names. This case is worth noting because of its particularly egregious nature in terms of pregnancy discrimination.

Does South Carolina Law Protect You?

South Carolina law explicitly states that a mother may breastfeed her child anywhere that the mother and her child are authorized to be. If in public, it will not be considered indecent exposure. However, the key word in the statute is “authorized.” Different places will have different definitions, and the question of where a child is “authorized” to be can sometimes be difficult. Is a child permitted to be someplace like, for example, a government building, or are they there on sufferance since their mother’s presence may be required?

It is also worth noting that this law is not one that would apply to women in situations like Hicks’, where her child was not present but she needed to express enough milk to feed him at the appropriate time. The federal Fair Labor Standards Act (FLSA) requires that employers provide breaks for the purpose of expressing milk to employees who are not exempt from Section 7 of the Act. This would apply to Ms. Hicks, as the employee of a federal, state, or local government agency. However, women who work in exempt positions like secretarial employees would have little recourse if experiencing breastfeeding discrimination at the present time.

Seek Experienced Legal Advice

While Ms. Hicks has achieved an important precedent, it is not yet binding in South Carolina. If the case goes to the Supreme Court, as it would if the City of Tuscaloosa appeals, then it will be binding. In the meantime, if you need help or have questions regarding your rights as a nursing mother, attorney A. Christopher Potts and his Charleston employment law firm can be of assistance. Contact our office today to set up an initial consultation.

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