The Rocky Mountain Employer


Labor and Employment Law Updates

Lactation-Based Bias is Both Sex Discrimination and Harassment

A restaurant franchisee must pay $1.5 million to a female employee for denying her a private place to express breast milk, under a recent Delaware jury award.FN1

The employee alleged that her employer first discouraged her from pumping at work, then demoted and transferred her so “it would be easier” for her to pump. However, she was forced to pump breast milk in a bathroom and then in a non-private office where her supervisor worked while she pumped. The jury agreed with the worker’s allegations that she was harassed and demoted because of her status as a lactating women, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).


Employers must be mindful of their obligation to provide breaks and a non-bathroom area for expressing milk under both federal and state law. Since 2010, the federal Fair Labor Standards Act (“FLSA”) has required employers with 50 or more employees to provide workers with reasonable break time to express breast milk for the first year of their child’s life. Employers must designate a space where employees can pump — one that is obscured from public view and is not a bathroom. Employers with fewer than 50 employees are subject to the same requirements unless complying with the law “would impose an undue hardship.”FN2

Many states also have workplace breastfeeding laws. Under Colorado law, all employers must provide a room or other location in close proximity to the work area—other than a toilet stall—where an employee can express breast milk in privacy, and must also provide reasonable break time to allow the employee to express breast milk for her nursing child for up to two years after the child’s birth.FN3


FN1 - Lampkins v. Mitra QSR KNE, LLC, No. 16-647-CFC (D. Del., Nov. 28, 2018)

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