Ex-employee sues N.H. DHHS over breastfeeding denial

Former child support officer was behind failed ‘Devon’s Law’ in last legislative session

The New Hampshire Department of Health and Human Services – which on its website advocates that employers accommodate women who breastfeed their babies – has been sued by a former employee who claims the agency would not let her leave the premises or even use a lactation room to do just that.

Katherine “Kate” Frederick, a former child support officer in the department’s Conway office, filed suit Sunday night in a U.S. District Court in Concord, claiming DHHS fired her in September 2012 in retaliation for requesting a reasonable accommodation to directly breastfeed her then 2 1/2-month-old son Devon, because he could not yet take a bottle.

“The state effectively forced her to choose between her baby and her job,” said Benjamin T. King, an attorney with the office of Douglas, Leonard and Garvey in Concord. “When Kate chose her baby, the state fired her.”

DHHS referred the suit to the state Attorney General’s office, which declined comment, saying that it didn’t have time to review it.

But in an email included with the lawsuit as an exhibit, an official stated the department’s position at the time.

“Federal law and Department policy permit reasonable times and facilities for the expressing of breast milk, as have been explained and offered to you. You are also permitted to breast feed your child on breaks in any public area on the grounds, which has also been explained and offered to you. You are not permitted to leave the premises during your paid breaks, which seems to be the only option that you find acceptable.”

While Frederick declined an interview through her attorney, she did testify in February about her battle with the department while testifying at a New Hampshire House hearing on House Bill 1571, known as Devon’s Law, named after her son.

The law would have required that all employers provide a safe space for their workers to either express milk or breastfeed their child or face a $100-a-day penalty. Opposed by Business and Industry Association of New Hampshire, the House passed a watered-down version, and the Senate eventually tabled that bill.

Frederick first asked for the accommodation in March 2012 while still on pregnancy leave, providing notes from her medical providers suggesting a modified work schedule because she was suffering from anemia during her pregnancy, but her supervisor allegedly pressured her to work “harder and faster."

Devon was born in May 2012 and refused to take nutrition from the bottle, says the suit.

“Breastfeeding was the only means through which to feed Devon,” says the complaint.

In July 2012, Frederick’s medical provider released her to work up to four hours a day, but with an extra half-hour break so she could directly breastfeed her child.

Frederick proposed that she simply go to the daycare center three-tenths of a mile away, arguing that other workers leave the premises during breaks, but her supervisor refused, saying she could express her milk instead, according to the complaint.

Frederick countered that Devon could be brought to her so she could directly breastfeed him in the lactation room. This too was denied.

“The rigid conditions that the state was setting … were utterly insensitive to the particularly needs of Ms. Frederick’s baby,” says the complaint.

After Frederick didn’t return to work by Aug. 17, 2012, when her family leave expired, the department granted her a disciplinary hearing a week later. When she again asked to breastfeed in the lactation room, her supervisor allegedly said, “Nope, not gonna happen. It’s just for pumping.”

The state maintained that bringing babies to the workplace would be “too disruptive,” the complaint says.

DHHS strongly encourages breastfeeding on its website, saying it is “crucially important to the health of mothers and children. It notes that the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) rewards breastfeeding recipients with an extra allocation of fruits and vegetables.

The website also points out that the federal Affordable Care Act says that employers “are required to provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

The site also recommends that “management can encourage supervisors to work with breastfeeding employees in making reasonable accommodations to help them reach their breastfeeding goals and encourage other employees to exhibit a positive and accepting attitude.”

And the state DHHS site links to the federal DHHS’ “Business Case for Breastfeeding” website, “which provides a toolkit for employers and employees to create a breastfeeding friendly worksite, is available for download online or can be ordered free of charge.”