9 thoughts on “Forced resignation due to breastfeeding not sexist

  1. This is what happens when gender equality backfires. This is why it’s important to recognize that women are not actually equal to men.

  2. Uhh, no. I think you’re mixing up sameness and equality. Properly promoting equality requires recognising the ways men and women are not the same.

  3. Just … Unbelievable. And comment #1 “women are not actually equal to men” – (expression of pain and horror goes here).

    I wrote on another blog that feminists just have to deal with these great steaming piles of stupid all the time – I know it, but it’s still surprising.

  4. I think the claim that the decision rests on “because men can lactate” is false. First, the 8th circuit decision doesn’t have anything to do that; it’s about whether Ames’ resignation was “constructive discharge.” Second, the “men can lactate” claim occurs in a footnote of the district court decision (fn 28)– the court notes that adoptive mothers and even men can lactate, but then says, in the next line, that *even assuming arguendo that this is false*, Ames would not meet the relevant standards because the relevant case law distinguishes between lactating and desiring to breast feed. If this is right, the men-lactating claim has no bearing on the district court’s decision. (I’m not endorsing any of the court decisions or the existing law! I’m also not a lawyer, and maybe I’m misreading the decisions.)

  5. Unfortunately, I have not had time to go look up the case, and relied on this article. Apologies for its inaccuracy.

  6. The description in the linked story is not a very accurate account of the case, no. The court (quite reasonably, I think) did not find that the employee was forced to resign, and even if she had been the reason wouldn’t be accurately characterized as “because of breastfeeding”. However, the underlying issues on which the case was decided are extremely interesting and point to places where the law ought to be changed. Courts have not been interpreting breastfeeding under the relevant laws as a medical condition related to pregnancy, such that failure to accommodate women who are expressing milk or nursing in the workplace is seen as interfering with a medical need. Rather, breastfeeding is viewed as a child-rearing choice. This interpretation is reminiscent of arguments offered by who believe that workplaces – and universities in particular – need not and even should not provide any special accommodations for employees who give birth (or whose partners give birth, or who adopt children), since all of these events are taken to depend on free choice.

    One frequent approach taken by universities and other employers who want to accommodate employees having children is to pathologize pregnancy as a medical condition, thereby treating associated leaves like any other medical leave. The medical condition is not interpreted as encompassing nursing or lactation, however. This is where the reference to men lactating comes in – some courts have argued that lactation is not unique to birthing mothers, since other women, including adoptive parents, and even men can sometimes induce lactation without birth. Therefore, lactation is not necessarily a medical condition associated with birth, so it doesn’t need to be treated as one for interpretation of the law. I would like to know how common it is for courts to interpret medical conditions in this fashion. In other cases where medical consequences flow possibly but not necessarily from some medical cause, and may even arise due to a non-medical cause, is it normal to treat them as non-medical under the law? For instance, suppose that some medical cause means that I lose a kidney. The medical cause need not always lead to this result, but in many cases it does, Some people also choose to donate a kidneys without any medical cause of their own (and thus perhaps require time off from work, or accommodations thereafter). If someone was fired e.g. for taking time off from work to recover from a kidney donation, could a judge reasonably interpret that condition as a medical one? This may be a poor example because I don’t know much about kidney donation or disease, but it was the first one that sprang to mind. The point is, why isn’t nursing considered a medical condition when in the case of a birthing mother it is directly caused by giving birth, which is considered a medical condition? Just because you could choose to put a stop to lactation doesn’t mean it’s not a medical condition as opposed to simply a choice about childrearing akin to cloth/disposable diapering?

    Finally, should universities jettison the whole approach to granting accommodations that medicalizes pregnancy? Many schools want to provide some time off to new parents and adoptive parents. Birthing mothers who in addition require medical time off due to surgery or complications could be treated like other employees with a medical condition, but why do all women who have children need to be treated this way in order for leave beyond what is specified in the FLMA to be granted? (The obvious difference here is paid leave, but more time off and more time for fathers or adoptive parents are others.) What do these practices look like outside the U.S.?

  7. Oh no! I just did a response to this and it disappeared, presumably because I’d entered my details wrongly. So I’ll have to keep it short:

    I think Susan’s summary is good, though I don’t agree the SC decision on constructive dismissal was reasonable (the ACLU amici curae submission linked from the ACLU site is worth reading on this).

    In Australia, breastfeeding is a protected ground under Anti-discrimination legislation, as is pregnancy. It’s not necessary to medicalise either. As a feminist historian, I think doing so rests on an inherited assumption of the embodied male as the normative individual. This may be a particular problem in the US because of the ideological commitment to individualism and liberalism rather than social democracy.

    I don’t have time to comment further and I haven’t read all documents, particularly the SC decision as there was no readily apparent link to that, and don’t have time to read or comment more at present, but I think this is a very interesting discussion so I hope others will read the docs and comment further.

  8. I think (to the best of my not very good) knowledge that in the UK and the NL, there is just specific employment legislation in place that allows women the right to a place at work where she can pump/feed, and time off to do so (just like there is legislation allowing time of for prenatal visits, etc). It seems to me to make a lot more sense to have legislation like that, then to wheedle it through under the banner of medical leave – though in a country with barrely maternity leave, I see how difficult that would be.

    One thing that IS interesting is, of course, that IF one is breastfeeding, then it is kind of a medical issue; there may well be an overall choice to breastfeed or not, but when that decision is made, then the immediate need to pump (now; or in the next two hours) – is an immediate medical one – for if that doesn’t happen it results in pain, mastitis risk, etc.

    I cam’t think of obvious analogy to other type of conditions – though presumably must be some.

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