Did the Supreme Court Really Strike a Blow to Breastfeeding Moms?

So is the Supreme Court crazy sexist or what? 

As the husband of a new mom, I know more about breastfeeding than I ever thought I would. There's a stigma around breastfeeding that I had never known about before. A credit goes out to my mom, a nurse, who taught us that such bodily aspects were a natural part of life. She also tried to explain about the anatomy of males to me one time referencing my father, but that talk didn't really end with any thing informative, but has been seared into my brain sense.

So I'm sensitive on the issue. I've seen the anxiety on my wife's face when she needs to feed in public, though that has lessened in time. Living in a pretty liberal city, I haven't really noticed any sideways glances thankfully. So when I saw this article claiming that because a man could lactate too that firing a woman for breastfeeding wasn't sexist, I was shocked. But then my bullshit-o-meter went off, which probably irritated everyone on the 4th floor of the law library, but whatever, law students are the worst. Whenever I see a salacious claim like that, I get skeptical and start asking and answering questions in my tiny brain.

Is that a federal case really saying that women can be fired for breastfeeding because men can lactate too? That doesn't seem remotely right and I can think of 4 Justices who would easily want to review this. So what gives? Is this really a case about breastfeeding? Is The Man still trying to keep women down? (Well, probably yeah, but I mean in this case in particular.)

So let's go to the tape!

Errr.

Let's go check out the case!

Here's the law pertinent to Ms. Ames's situation: 

1. To prove a constructive discharge, an employee must show that the employer deliberately created intolerable working conditions with the intention of forcing her to quit.
2. In addition, an employee must give her employer a reasonable opportunity to resolve a problem before quitting.
3. Evidence of the employer's intent can be proven through direct evidence or through evidence that the employer could have reasonably foreseen that the employee would quit as a result of its actions.

The article above does a solid job of showing examples of Nationwide possibly violating the point 1 above. It's important to note point 2 required Ms. Ames to give her employer an opportunity to resolve the problem and the here author neglected to post any facts that possibly went against Ms. Ames's case on this point.

Facts directly from the case not mentioned in the article:

Prior to returning to work, Ames asked a Nationwide disability case manager where she could express milk when she returned to work and was told that she could use a lactation room. Ames returned to work on July 19, 2010, when her son was two months old and breastfeeding every three hours. By the time Ames had arrived at work that morning, more than three hours had passed since her son had last nursed. Ames asked Neel about using a lactation room. Neel replied that it was not her responsibility to provide Ames with a lactation room. Ames then went to the security desk to inquire about the lactation rooms and was directed to see Sara Hallberg, the company nurse.

Hallberg informed Ames of Nationwide's lactation policy, which allowed employees to gain badge access to the company's lactation rooms after completing certain paperwork that required three days to be processed. The lactation policy was available to Nationwide's employees on the company's intranet, and Nationwide provided information regarding the policy at its quarterly maternity meetings. Ames's conversation with Hallberg was the first time that Ames had heard of the policy. Hallberg sent a copy of the lactation policy to Ames via email. Hallberg also requested that security “grant Angela Ames access to the lactation rooms as soon as possible.” 

When Ames told Hallberg that she needed to express milk immediately, Hallberg suggested that Ames use a wellness room. Because the wellness room was occupied, Hallberg told Ames to return in fifteen or twenty minutes. Hallberg warned Ames that lactating in a wellness room might expose her breast milk to germs.While waiting for the wellness room, Ames met with Brinks to discuss the status of her work. Brinks told Ames that none of her work had been completed while she was on maternity leave, that she had two weeks to complete that work, that she would have to work overtime to accomplish this, and that if she failed to catch up, she would be disciplined. After the meeting with Brinks, Ames returned to Neel's office to see if Neel could help her find a place to lactate. Neel again told Ames that she was unable to help. Neel testified that Ames was visibly upset and in tears. Neel then handed Ames a piece of paper and a pen and told Ames, “You know, I think it's best that you go home to be with your babies.” Neel dictated to Ames what to write on the piece of paper to effectuate her resignation.

TL;DR: Ms. Ames was in physical and emotional pain on her first day back from work, Nationwide gave her some options which she didn't feel were acceptable and then someone helped her write a resignation letter.

That certainly paints a different picture than the draconian one above. Here's where we take this case from enraging and black-and-white and into a grey area:

• Did the employer deliberately do things to make Ms. Ames want to quit?
• Was the wellness room an acceptable resolution as Ms. Ames awaited access to the lactation room?
• Was it unreasonable for the company to require three days on such paperwork?
• Going on to point three, by providing only the wellness room, etc, should the employer have known that the employee would quit?
• Was Ms. Ames's resignation an actual resignation or was she in actuality fired?

I think if you're being reasonable, you can argue both ways for those questions. This is important because it means that the court holding isn't egregious on its face. What you can't argue is that the article above doing a remotely adequate job of explaining the law behind the issue in the first place. They have a clear bias and manipulated the reader rather than educating and suggesting a legit solution. This drives me nuts because they have the moral high-ground that everyone believes in: New parents should feel supported as employees.

Now, let's pay close attention to that last question. It stuck out to me immediately that her resignation might not have been purely a resignation and I'm sure you felt the same. We'll get back to that in a second.

So what did the Appeals Court actually rule?

The Court held that Ms. Ames was not constructively fired. Looking at the facts, they relied on the fact that Ms. Ames did not complete the paperwork that other employees completed and the fact that Nationwide attempted to accommodate her in alternative ways. The court said that even if Nationwide didn't accommodate her and created an uncomfortable work environment, Ms. Ames did not give Nationwide a reasonable amount of time to create an acceptable remedy. Further, the Court noted that it was important that Ms. Ames resigned. Because she resigned, she really couldn't claim she was fired.

I have nipples Greg, can you milk me?

So where is the line that its not sexism because men can lactate too? I have no idea. The word men isn't even in the decision. I even did a ctrl+f search. I have no idea. I assume it had to be discussed in the trial court. Regardless, the Supreme Court certainly wasn't signing off on that statement.

Maybe she should have Amesed higher on her lawyer choice

But wait? Did she actually resign? We have that question above and you told me to pay attention to it, jerk.

I did indeed. Ms. Ames didn't even challenge the validity of her resignation initially, therefor she never had the right to make an appeal based on that issue. She loses there because her attorney never brought it up.

So what do you think, Shane?

I think that there needs to be more empathy in the workplace for new parents. Employers have to understand that there are physical and mental changes occurring in both men and women. When they come back to work, some patience needs to be shown. What seems more troubling about Nationwide isn't that they didn't have her badge for a breastfeeding room ready (HR probably should have), but they should have been prepared to deal with an emotional bump. Rather than help someone fill out a resignation letter, maybe you say take the rest of the day off as a sick day instead. 

I think this goes back to our stigma we use against mental illnesses. The old "Suck it up, champ." You have an employee who needs support, not someone telling them to ignore what's going on. A lot of this is avoided if we grant better maternity and paternity leave, which I think is the biggest issue. (I'm not saying a post-birth mother is mentally ill, by the way. But there are chemical changes that are occurring that affect mental health, so it's the spirit of the example, not the exactness. Please don't murder me in my sleep.)

I think Ms. Ames is ultimately a victim of a larger societal issue rather than a wonky legal ruling. If I were the boss of Ms. Ames, I absolutely would have assumed my behavior was unreasonable and would have led her to quit. However, I also think a reasonable person might not, especially if they've never had experience in breastfeeding. The point here is that there is area for a disagreement and differing and valid opinions.

Not only that, but as always, make sure you're getting sound legal advice. The trial lawyer in this case failed to bring up a point of contention that laypersons saw. If I can see that, they should haave been able to see that because I'm not even good at this lawyerin' stuff yet. (Also I'm not even a lawyer yet.)

Finally, the "journalism" displayed is at best lazy and uniformed. At worst it's a slick piece of click-bait, dishonest propaganda that is intentionally manipulative. Alternet.org should be embarrassed this passes for analysis. They completely took a dump on their readers and they don't seem to care. I suspect the advertisers on their site didn't mind. 

So the Supreme Court isn't against breastfeeding. Rather, we have a sound legal decision that is distasteful when you don't look at the law. There's no reason for the Supreme Court to take this case.

Sidenote: I really wanted to use the line "putting the labor back into labor law," but I couldn't quite fit it back in. So you can keep that joke for yourself now. Use it on a rainy day.