In February 2022, the Equal Employment Opportunity Commission filed a lawsuit in the Southern District of Iowa against Walmart alleging violations of Title VII of the Civil Rights Act for sex and race discrimination. The race discrimination claim is based on the allegation that the employee, who is Black, was provided an “unsanitary storage closet” to express breast milk compared to a “clean office space” provided to a white employee for the same purpose.
Providing female employees with a proper space to use to express breast milk is not a novel concept nor is it a new requirement because of the pandemic. However, as employees begin to return to a physical workplace, it is important for employers to understand any requirements to provide such space, as well as break times, to their employees.
In general, most laws require a private space, not a bathroom, where an employee will not be disturbed or “walked in” on in order to express breast milk.
As a starting point, the Fair Labor Standards Act requires employers to provide reasonable break time for an employee to express breast milk and a place, other than a bathroom, that is shielded from view and free from intrusion to do so. If this break time is taken, it is not required to be paid and is not considered work time.
Thirty states, Puerto Rico and the District of Columbia have enacted laws related to employee’s breastfeeding in the workplace; but it is important to review these laws to understand the specific requirements. For example, Kentucky’s Pregnant Workers Act requires all Kentucky employers with 15 or more employees (for 20 or more calendar weeks) to provide a private space that is not a bathroom for expressing breast milk. While California requires employers to provide break times and a room shielded from view, free from intrusion, with a place to sit and access to electricity, a sink with running water and a refrigerator. The other states with work-place laws regarding breastfeeding or expressing breast milk include Arkansas, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Montana, Nebraska, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia and Washington.
Employers in states without specific laws that require providing a particular space for an employee to use to express breastmilk must not ignore this issue as clearly demonstrated by the lawsuit filed by the Equal Employment Opportunity Commission in Iowa.
If you have any questions about this or any other employment-related topic, please reach out to our Labor & Employment Group!
