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Judge: Legally, breastfeeding not related to pregnancy

In a strange court decision, a U.S. District Judge ruled that "lactation is not pregnancy, childbirth, or a related medical condition," and therefore isn't covered by pregnancy or sex discrimination laws. This seems a little illogical as most women don't lactate without going through pregnancy and childbirth. And you never hear of men facing breastfeeding trouble in the office, so it does seem related to sex as well.

Donnicia Venters worked for Houston Funding, and had for over a year when she gave birth, in 2007. The company had no maternity leave policy.

Ms. Venters claims that she planned to come back to work and had maintained contact with her fellow employees, although not her boss. Her position was that everything was fine until she asked if she could use a back room to pump. Suddenly, things were not okay and she was fired. The EEOC agreed that this was a case of pregnancy and/or sex discrimination.

The company maintains she was terminated for job abandonment, as she hadn't kept in contact with her supervisor.

The case didn't even make it to court because the judge ruled that even if Ms. Venters is correct and they fired her because she intended to pump milk at the office, that the law does not protect lactation as it's not related to pregnancy or childbirth.

Even though the decision was handed down last week, it was based on the laws in 2008, when the firing occurred. Since then, Congress has amended the Fair Labor Standards Act to require employers to provide time for women to pump for up to 12 months after the birth of a child. You may think that this case is completely irrelevant to you, but not necessarily. This law only applies to non-exempt employees and there are exceptions even then.

Twenty four states have laws related to breastfeeding in the workplace, but if you work in one of the other 26 and are an exempt employee, you may have no protection at all.

Employment Attorney, Donna Ballman, advises "If you are on maternity leave and getting ready to return, don't assume that you can't be fired for breast pumping. If you are salaried and your employer considers you exempt from overtime, you might not be protected under FLSA. However, many employees are misclassified. If your employer gets this wrong, you might also have overtime claims as well as claims for breastfeeding discrimination."

Additionally, keep in contact with your boss while on maternity leave. If your company doesn't have a specific policy, ask that one be written while you are still pregnant. It's much harder to look someone in the eye and say, "Oh, no, we'd fire you for pumping at work!" then it is to fire someone for "job abandonment." As a general rule companies are bound by their own policies, so get one on the books before you start lactating.

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