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Lactation Accomodation

California employers are required to provide a sanitary and private lactation room for nursing employees, so that they may express milk for their infant child, pursuant to California Labor Code §§ 1030-1033.

If you are breastfeeding your child while at work, you should know that the law considers this a disability and your employer must provide you with a reasonable accommodation for your disability. In order to take advantage of this law, however, you must specifically request a sanitary and private lactation room as a reasonable accommodation for your post-partum condition and medical need to express milk for you and your infant child.

Typically, you will want to make the request in writing to your Human Resources and/or Management Department. Inform them that you need a reasonable accommodation for your disability - namely, that you need a clean, secure place, free of harassing interruptions, in order to pump milk for your baby. For health reasons, many mothers breastfed their child for a period of years after birth.

Once you make your request for a reasonable accommodation, your employer must then engage in what the law calls “a timely, good faith interactive process” with you regarding your request for reasonable accommodations. If your employer unreasonably denies and/or ignored your requests and forces you to continue working without any accommodations, then you will likely have a case for pregnancy discrimination and/or failure to engage in the interactive process.

California Government Code § 12940(n) provides that it is an unlawful employment practice “[f]or an employer... .to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

Under California’s Fair Employment and Housing Act, also known as “FEHA”, an employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.” Faust v. California Portland Cement Co., (2007) 150 Cal.App.4th 864,867. Employment cases are heavily driven by documented evidence, which means that you should always document your requests for reasonable accommodations, otherwise the employer will typically deny that you even made the request. It is much easier to prove and win your case if you have everything in writing! Emails and/or text messages are often used as evidence in court to show that the lactating employee made the request for reasonable accommodation.

Government Code section 12945(a)(3)(A) provides that it is an unlawful employment practice “[f]or an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if she so requests, with the advice of her health care provider.”

In our experience, some employers will retaliate against you for making a request for a reasonable accommodation. This is also illegal! In one case we have seen, a nursing mother she had to pump breast milk for her newborn baby in unsecured, filthy and unsanitary conditions that included rats, intrusions from others, and even more mind-boggling - cameras capturing this incredibly private activity placed by a perverse coworker. After she complained in writing to her HR department that she needed a clean, secure place to breastfeed, this employer actually retaliated against the nursing mother by making the conditions of her employment worse. The employer also took other adverse employment actions against her, including the following illegal actions: purposefully not addressing her complaints; demotion; change of job duties, and other material changes in the terms and conditions of her employment. This type of retaliation for requesting a lactation accommodation is in violation of California Government Code §12940(h).

Ultimately, the employee was forced to transfer, enduring both a demotion and a pay cut, as a result of the retaliation directed at her after she engaged in the protected activity of requesting accommodations for breastfeeding. However, even after she transferred departments, her former supervisor reached out to her new supervisor, and made further derogatory remarks about her requests for lactation accommodation. In addition, her former supervisor successfully sought to negatively influence her performance evaluations in her new position, which constitutes further retaliatory action against the employee.

In violation of FEHA, this employee’s employer failed to take all reasonable steps necessary to prevent harassment based upon characteristics protected by the FEHA, namely her sex and/or breastfeeding status, and/or actual and/or perceived disabilities and/or engagement in a protected activity. If any of these types of things are happening to you, you may have a case for pregnancy discrimination and you should call us today to discuss your situation to see if we can help you. Please call the pregnancy discrimination lawyers at Nassiri Law today at (949) 375-4734. The consultation is free.

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