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“Men Can Lactate …” Is Just Tip Of What Court Screwed Up

I am going to say something I normally do not when talking law.

The court got this one wrong, 100-percent dead wrong.

This is how strongly I believe every layer of the court system—trial, appellate and the Supremes—failed Angela Ames. And, as a result, failed working women everywhere.

Ames, if you are not familiar, was the Iowa mom determined to “Lean In” after having a baby. Because she chose to nurse her baby, this meant pumping and storing breast milk during the workday.

Totally doable, right?

Apparently not.

According to court documents, Ames was told there would be a lactation room available upon her return. What she was not told was she needed to fill out paperwork to use it. So she shows up for her first day back with no place to pump.

Back at her desk and feeling a little defeated, a direct supervisor uses this opportunity to explain she had two weeks to catch up on work not done during her leave or face disciplinary action. She then maybe, possibly suggested resigning and happily helped dictate her letter doing so.

Ames quit, and I do not blame her. I have been in Ames’ sensible pumps, and recognize how a discrimination- and harassment-free work place makes all the difference.

The trial court was not as understanding. When Ames sued for sex discrimination, her case was thrown out because she ostensibly “quit”. And there was this little bit from the trial court, as reported by Raw Story, about how “breastfeeding-related firings aren’t sexist because men can lactate, too.”

This little detail has, of course, blown up because it is ridiculous and sexist and allowed to stand without pushback in subsequent appeals. A lot of people already have weighed in on the Supreme Court declining to hear a petition to overturn the lower court’s ruling, usually with caveats like “I’m not a lawyer but …”

I am a lawyer, and an employment lawyer. I realize in order to prevail in a discrimination case, a plaintiff must prove she/he suffered an adverse employment action (I did not get a promotion, I lost my job, etc …) This is why the lower court ruled how they did, because she quit.

But that is an oversimplification of the facts. The real takeaway isn’t that Ames walked away voluntarily and not that some men lactate, but rather that there is a certain amount of harassment we expect women to tolerate when returning from maternity leave. The message the court sent was “Hey, Angela, there are no circumstances so awful you can be forced to quit. You should have toughed it out, toughed it out until you were overlooked for a promotion or literally heard the words ‘You’re Fired’. Then and only then will we in the black robes deem it necessary to intervene.”

And that is just tough for me to swallow—as a working mom, a woman and a lawyer.

It is impossible to look at the actions of Ames’ employer and not see how they did wrong. They harassed her and actually fired her when the supervisor dictated her resignation letter. (And if Ames’ lawyer had argued this was an actual discharge at the trial, rather than a constructive discharge, this case very likely turns out differently.)

At the very least, though, the employer violated the Fair Labor Standards Act (FLSA), which requires employers to provide a nursing mother with reasonable breaks to breast feed. And the message sent by the courts is they do not care.
And they absolutely got this one wrong.

Legally yours,

LLH

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