The cost of denying breastfeeding accommodation

SB 219 seeks to clarify employer obligations by putting the context of several federal and state laws all in one place

If an employee requests accommodations for breastfeeding or related activities, what is the financial risk for the employer if the request is denied? Simply put, it can cost more to deny the accommodation than it costs to grant it.

In order to avoid expensive consequences, employers are cautiously considering current federal laws, such as the Fair Labor Standards Act, the Family and Medical Leave Act, Title VII of the Civil Rights Act, the Americans with Disabilities Act and state laws against pregnancy and disability discrimination. 

The Equal Employment Opportunity Commission has been cracking down on the prevalence of unlawful sex discrimination experienced by breastfeeding employees, as referenced in an enforcement guidance: “Lactation is a medical condition related to pregnancy and it is illegal to discriminate against employees for breastfeeding activity during a workday.” 

An employee who is denied a medical accommodation, such as for actual breastfeeding, may be eligible for unemployment insurance, just as I received. 

Even if the employer acted in compliance with current law when denying the employee’s request for accommodation and even if the employee quit, was fired or is still employed, where their hours were reduced, an employer may end up paying dearly. Employer costs for an employee receiving unemployment insurance in New Hampshire can be up to $555 per week for 26 weeks -— approximately $14,500. If extensions apply, this can continue for almost a year. 

Another consideration for employers is the potential expense to replace the employee. Costs for advertising, recruiting, interviewing, training and loss of production can amount to an average of $50,000, according to businessman and Patagonia Inc. founder Yvonne Chouinard.

A lawsuit and a legal defense can take years to resolve, while back pay, damages and attorney’s fees accrue.  This is something legislators, the employment sector, breastfeeding advocates and attorneys are considering as they weigh in on the bipartisan Senate Bill 219.

The 2015 bill was submitted to prime sponsor Sen. Martha Fuller Clark, D-Portsmouth, by myself and Kary Jencks of the New Hampshire Citizens Alliance.

SB 219 serves to clarify already existing employer obligations, by putting the context of several federal and state laws all in one place. Business and Industry Association Senior Vice President Dave Juvet, testified in support of SB 219 during the bill’s public hearing on March 31 before the House Commerce and Consumer Affairs Committee, along with the bill’s prime sponsor, Senator Clark Senate Majority Leader Jeb Bradley, R-Wolfeboro, and Rep. Ed Butler, D-Harts Location, a member of the House panel.

Additional testimony was provided by the ACLU of New Hampshire, Benjamin King, a civil rights attorney, the New Hampshire Breastfeeding Rights Coalition and New Hampshire Voices for Health. 

SB 219 would also serve to keep New Hampshire in compliance with recent court decisions, including the March 25 Supreme Court ruling in Young v. United Parcel Service, which was in favor of Young, who sued under the federal Pregnancy Discrimination Act.

The court made clear the instances when employers are mandated to provide accommodations and when sex discrimination may be inferred if they don’t.

Since the federal law includes protections to accommodate medical conditions related to pregnancy, such as lactation, employers are considering their liability if they deny requested accommodations for breastfeeding – including actual breastfeeding. With bipartisan SB 219 moving forward, even resistant employers are realizing that the bottom line is not just about good health or long-term savings, but about the accounting of financial prudence. 

Kate Frederick, a consultant who provides written workplace plans for accommodating pregnant and breastfeeding employees with The Rustik Baby Project, is a former adjudicator for the state Department of Employment Security and president of the New Hampshire Breastfeeding Rights Coalition.