Court Rules on Breastfeeding Discrimination: Men Can Lactate, Too

On 3 February 2015, the website RawStory published an article titled "Supreme Court lets stand ruling that firing woman for breastfeeding not sexist since men can lactate." The article reported the Supreme Court had declined to hear a petition regarding a discrimination lawsuit
a breastfeeding mother had brought against her employer, and it stated the original trial court's dismissal of the lawsuit (which was upheld in appellate court)

was based on the notion "breastfeeding-related firings aren't sexist because men can lactate, too." Although the original District Court ruling in October 2012 that dismissed the lawsuit did include reference to lactating men, that was not the primary basis for the court's decision, nor was it a factor mentioned at all in the March 2014 ruling of the St. Louis-based Eighth Circuit Court of Appeals that upheld the District Court's dismissal.

The case in question involved a dispute between Angela Ames and her employer, Nationwide Insurance, with the plaintiff asserting the company denied her a room to pump breast milk and pressured to resign on her first day back from maternity leave. The appellate court upheld a lower court's ruling she "did not meet the legal burden of showing she was treated so badly that any reasonable person would have resigned" and denied her a chance to take her claims of gender and pregnancy discrimination to trial.

On 2 February 2015, a post on the American Civil Liberties Union blog made reference to the notion the trial court had rules "that even if Angela had been fired because she was breastfeeding, that was not sex discrimination in part because men can lactate under certain circumstances":

Last week, the Supreme Court sent her the same message — go home — rejecting her petition for a review of the dismissal of her case. The denial of her petition effectively means the end of the line for her case.

The courts dismissed Angela's case saying that she didn't take sufficient steps to complain internally before writing her letter of resignation — even though her own supervisor was the one who handed her the pen and dictated what to write — and therefore, she wasn't really fired. The courts found it irrelevant that Angela was supposed to take these additional steps while engorged and waiting for a pumping room that her employer told her wouldn't be available for several days.

The trial court also held, nonsensically, that even if Angela had been fired because she was breastfeeding that was not sex discrimination, in part because men can lactate under certain circumstances.

It's certainly important to acknowledge that some men (including some trans men) can and do lactate. But it should also be self-evident that firing someone because they are breastfeeding is still a form of sex discrimination, and one that is all-too-frequently experienced by new mothers. The court's reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn't sex discrimination because both men and women can be non-pregnant. Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It's disheartening to see it resurface again.