The Rights of Nursing Mothers

Texas mothers share a common concern after the joy and excitement of welcoming a new baby: What happens when they return to work after maternity leave? For nursing mothers, another concern is when and how they will be able to pump breast milk at work.

While a woman in Texas may breastfeed her baby anywhere without facing a public indecency charge, Texas law has gaps in the protections provided to nursing mothers. Texas does not have a specific law that requires employers—other than public employers—to allow a woman to express breast milk at work.

Women working for public employers (such as a county, municipality, school district, or other political subdivision of the State), have the statutory right under Texas Government Code Chapter 619 to express breast milk in the workplace. A public employer must provide a reasonable amount of break time for an employee to express breast milk each time the employee needs to do so.  The public employer also must provide a place—other than a multiple-user bathroom—that is shielded from view and free from intrusion from other employees and the public.

Under this law, a public employer may not suspend or terminate the employment or otherwise discriminate against an employee because the employee has asserted her rights under Chapter 619.  But the statute creates no private or state cause of action against a public employer. So it is not clear what remedy a nursing mother would have for violations of the statute.

For women who do not work for public employers, Texas has no statutory protection.  But in 2010, the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to provide limited protection for nursing mothers. 29 U.S.C.  § 207.

Under this statute, employers must provide “reasonable break time” for breastfeeding employees to express breast milk until the child’s first birthday. The employer must provide a private place—other than a bathroom—for this purpose.  The employer need not pay the employee for any work time spent for this purpose.

This statute only applies to non-exempt employees. Any woman considered exempt under the FLSA does not get this benefit. And employers with fewer than 50 employees are not subject to these requirements if the requirements would impose an undue hardship by causing significant difficulty or expense when considered in relation to the size, nature, or structure of the employer’s business. This exception leaves a lot of room for companies with fewer than 50 employees to argue that they should not have to comply with this statute.

Sometimes, an employee who is fired or who suffers some other adverse consequence from the need to express breast milk may pursue a sex discrimination or pregnancy discrimination claim under Title VII or Texas Labor Code Chapter 21.  Because lactation is a medical condition related to pregnancy, if there is an “adverse employment action” motivated by a woman lactating, courts recognize that it imposes a burden on women that male employees will not suffer. Because of that, a woman may still pursue a claim for sex discrimination or pregnancy discrimination.

A new mother does not need the stress of worrying about whether her job is safe when she returns to work from maternity leave and needs reasonable time to pump breast milk.  Unfortunately, this patchwork of laws does not give most new mothers the peace of mind they need.

In a perfect world, no new mother ever would need to contact our firm for advice on her rights as a nursing mother. But the world isn’t perfect. And the present statutory framework isn’t even satisfactory. Let us know if we can help.