Breastfeeding in public & at work

Breastfeeding Rights: Truth and Fiction

Even after the umbilical cord is cut, mothers still share a vital nutritional connection with their babies through breastfeeding.  Such a beautiful, natural thing.  Surely nothing could stand in the way of nurturing a healthy infant – right?  Unfortunately, this is not always the case.  Once a new mother and baby figure out the delicate bio-mechanics of how it all works, mom realizes at some point that she will have to go Out Into The World.  And it’s a world with a desperate fear of the unclothed human body.  Mom is desperately trying not to be an exhibitionist while still placating the child head-butting her chest, and she may begin to wonder… What are the rules? What are my rights?

Take heart.  Though we’re not 100% there yet, the rules are getting more mother-friendly all the time.  You have rights.

Breastfeeding and the law

Fact or fiction:  Breastfeeding is a constitutional right under federal law.

            Fact!  In the case Dike v. School Board, the federal appeals court in the circuit including Georgia held that breastfeeding is a constitutional right.  “Breastfeeding is the most elemental form of parental care. It is a communion between mother and child that, like marriage, is ‘intimate to the degree of being sacred,’ [ ] Nourishment is necessary to maintain the child's life, and the parent may choose to believe that breastfeeding will enhance the child's psychological as well as physical health. In light of the spectrum of interests that the Supreme Court has held specially protected we conclude that the Constitution protects from excessive state interference a woman's decision respecting breastfeeding her child.” 650 F.2d 783, 787 (former 5th Cir. 1981), internal citations omitted.  In that case, a kindergarten teacher had asked her husband to bring their baby to her every day during her lunch period so that she could nurse.  The school said she couldn’t do that because she was violating a school policy prohibiting employees’ children from coming on campus since doing so might subject the school to liability if an accident occurred.  The school also said she could not nurse her child in her car because of its policy forbidding employees from leaving the building during school hours.  She ended up switching the baby to formula and then when the baby displayed allergies eventually had to take unpaid leave time for the rest of the school year to breastfeed.  Fortunately the court hearing this case held that breastfeeding was a constitutional right. 

However, this did not give mothers a carte blanche to breastfeed anywhere and everywhere.  First, as this case went on to say, even when there are constitutional rights, if the governmental entity (such as the school) has a legitimate reason for evenly enforcing a policy (such as no teachers’ kids at school) it could still legally do so.  Second, what many people misunderstand about constitutional rights is that they simply mean that the government cannot infringe on that right.  So, for example, if she had been a kindergarten teacher at a private school she would not have had a case under constitutional law.  Similarly, if you are nursing on a bench in a public park and a state police officer asks you to leave, this may be a violation of your constitutional rights.  If you are in a privately owned store and the manager asks you to leave, you cannot sue him under the constitution for it (though you may have other rights). 

It is also worth mentioning that the fact that the court deemed breastfeeding to be a constitutional right means that the state cannot generally pass laws which would actively interfere with a woman’s right to breastfeed unless there is a compelling reason to do so.  This case was a huge victory for mothers and babies.

Fact or fiction:  State law allows you to breastfeed anywhere you’re allowed to be.

            Fact!  Georgia law takes federal caselaw even further.  You can cut this law out and put this Georgia law in your diaper bag:

“The breast-feeding of a baby is an important and basic act of nurture which should be encouraged in the interests of maternal and child health. A mother may breast-feed her baby in any location where the mother and baby are otherwise authorized to be.”  O.C.G.A. § 31-1-9

A mother may breastfeed her baby in any location where the mother and baby are otherwise authorized to be.  It’s the law.  Are you legally entitled to breastfeeding while riding a super duper crazy roller coaster?  No, your baby is not authorized to be on it.  Do you have a legal right to breastfeed on a bench in the mall?  Yes, you do.

Fact or fiction:  Employers must by law provide a private place and a break for milk pumping in support of breastfeeding.

            Fiction (in Georgia); fact in some other states.  In Georgia, the law is that employers may (but do not have to) provide a private location and opportunity (i.e. a break) to express milk.  O.C.G.A.  § 34-1-6.   The law encourages but does not require it.  In California and New York, by contrast, employers must provide this accommodation.  Some other states have passed legislation allowing employers to be labeled “Mother Friendly” if they have breastfeeding accommodation policies in place. 

Breastfeeding Accommodation

1. The Company encourages new mothers to nurse their babies.  As such, the Company will attempt to provide breastfeeding accommodation for at least the first year of the child’s life (for more than that you will need to speak with ___).
2. This accommodation is subject to the feasibility of instituting it given the staffing needs at the time.
3. This accommodation includes the following:
1. A location in which to nurse or pump breast milk discreetly and comfortably
2. Time in which to nurse or pump.  The nursing mother shall be allowed up to two 20-minute breaks (in addition to her normal lunch break) per day, not to be taken back-to-back.  These breaks are unpaid and the employee must clock out for these breaks.
4. Although children are generally not allowed on company premises, a nursing baby may be brought to the mother for the limited purpose of nursing during the allowed break times.  Mothers may not leave company premises during these break times.
5. If a mother opts to pump her breast milk, the company will attempt to make refrigerator space available in which to store it until the end of the day (milk must be taken home in the evenings).

These kinds of policies have been passed by legislatures not only based on the underlying notion that it is a good idea to support breastfeeding but also on more pragmatic rationales: breastfed babies get sick less, meaning new moms have to miss less work.  It is therefore a good idea for all employers, regardless of what the laws in the state are, to consider adopting such policies.  Whether you are currently breastfeeding or not, you can ask your employer to consider adopting a breastfeeding policy.  Here’s an example:

Fact or fiction:  Exposing a breast for the purpose of breastfeeding constitutes the crime of public indecency.

            Fiction (at least in Georgia):  In many states, public indecency statutes technically criminalized breastfeeding in public because of how the statutes were worded.  Showing a breast or a nipple was a crime.  Fortunately, because this was obviously not the intent of the laws, many states have passed modifications specifically exempting breastfeeding from indecent exposure laws.  In Georgia, the broad law mentioned above says that mothers may breastfeed wherever they are authorized to be.  O.C.G.A.  § 31-1-9.  The law authorizes you to do it, so you cannot legally be convicted for breastfeeding in public.

Fact or fiction:  The laws adequately protect mothers’ rights to breastfeed.

            Fiction!  Georgia is further along than some states, but it still needs legislation that actively protects mothers’ rights to breastfeed at work.  Contact your legislators!

           

For more information on the law:

La Leche League’s website has excellent summaries of the law related to breastfeeding.  http://www.lalecheleague.org/Law/LawUS.html?m=0,1,0

Beyond the law:  other things you can do

The American Academy of Pediatrics lists lack of public support as the number one reason why mothers discontinue breastfeeding before the end of the child’s first year. That means there is still work to do, both inside the law and out.

From time to time you hear about a security guard or a store manager asking a nursing mother to leave the premises, lock herself in a smelly bathroom stall, or cover up.  In some of these cases there are laws in place to protect against that kind of situation, sometimes not – but in either case, there are alternatives to heading to court.  In numerous instances across the country when women have been treated this way they have successfully organized media campaigns informing the public just which store it was that treated her that way.  Others have staged “nurse-ins,” getting a group of nursing mothers together sit-in style.  Less visibly, they have told all their parent friends where not to shop or have blogged about their experiences.  Use your creativity!

            If you make the brave and admirable choice to nurse your child, do so proudly and openly.  The more women future mothers see breastfeeding their children, the more normal it will seem to them to follow suit.  And if anyone gives you a hard time, come see me or another lawyer or breastfeeding support specialist!

Penn Dodson, nursed her two children for one year each.  She is an employment attorney with the firm of AndersonDodson, P.C.  She can be reached at penn@andersondodson.com or 212-961-7639.