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Breastfeeding in Public as a Civil Right

Angela White, J.D., breastfeeding counselor — Thu, 10 Dec 2009 19:30:46 +0000

When faced with legislation that would amend the state civil rights act so it explicitly covers breastfeeding in public, some legislators ask: Why a civil right and not, for example, another free-standing form of legislation under the rubric of, say, public health? That’s a valid and important question that has a very straightforward answer.

International Breastfeeding Symbol on a sign at the Santa Monica Pier; Photo by Wha'ppen

A civil right provides the necessary protection to a breastfeeding mother because it is an actionable right that gives mothers the ability to file a discrimination claim if someone has interfered with the mother’s right to breastfeed in public. Other types of laws are essentially unenforceable and merely pay lip service to the idea that women have a right to breastfeed in public. Certain laws, like Michigan’s current law, exempt mothers from being charged criminally with indecent exposure and do not give the woman any actionable rights. Laws like the public health suggestion generally have a very unfortunate loophole. They say that a mother can breastfeed in any place that she otherwise has a right to be. All a business owner has to do then is claim that the mother is no longer welcome there, that she is trespassing and no longer has the right to be on the property, and the police will enforce the criminal trespass law (which some argue trumps the civil health code provisions). Not only does the mother not have an actionable right under a public health provision, she faces potential criminal trespass charges if she continues to assert her “right” under the public health code! For examples where this has happened see these articles on Texas and North Carolina law:

Texas Law Loophole Explained
Nationwide Nurse-ins Planned at Denny’s Restaurants over Asheville, North Carolina Incident

It’s a Baby’s Right Too

If some people bristle at the thought of a civil right for the breastfeeding mother, it can be helpful to keep in mind that this is not just a “mother’s right” to breastfeed — it’s a baby’s right to be nurtured by the mother!

Won’t Civil Rights Legislation Lead to Excessive Lawsuits?

If the concern is raised that mothers will attempt to go out to breastfeed in public simply to get asked to leave and trigger a claim — that somehow this will explode into many claims by mothers — I would say that is totally unfounded. It’s very humiliating for a mother to be asked to leave a business and it’s highly unlikely that a mother with a nursling would put herself in that contentious position. Also, the claims process takes an extremely long time. For an example, see the case of the mother who was asked to de-board a Delta Airlines flight in 2006. It’s been three years and that claim has not been resolved and the mother has just now decided to file suit.

March 2008 (1.5 years after the incident) Vermont Human Rights Commission rules:
Commission Finds Airline Discriminated against Breastfeeding Mother

November 2009 settlement negotiations fall apart and mother sues:
Burlington Free Press article “Breast-feeding Mom Sues Delta”

Breastfeeding in Public Is an Existing Federal and State Civil Right

When I ran my thoughts by attorney and breastfeeding advocate Jake Marcus who blogs at Sustainable Mothering, she agreed and had this to add:

[B]reastfeeding discrimination should properly be considered covered by current federal and state civil rights law in that it is sex discrimination prohibited by the Civil Rights Act of 1964 and the state laws that are its parallel. Unfortunately, as with pregnancy, several courts have drawn a distinction between reproduction-related discrimination and sex discrimination. Congress passed the Pregnancy Discrimination Act in 1978 explicitly condemning judicial decisions that excluded reproductive discrimination from protection against sex discrimination. In the preamble to the pending Breastfeeding Promotion Act, it states also that the proposed inclusion of lactation is a *clarification* of the Civil Rights Act and not a change to the law.

So, state civil rights legislation like the breastfeeding bill pending in Michigan is necessary to see that the federal civil right Congress created in 1964 is enforced.

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Breastfeeding Representative from Georgia

Angela White, J.D., breastfeeding counselor — Mon, 07 Dec 2009 11:11:54 +0000

As women continue to fight for breastfeeding rights in the workplace, it is inspiring to read the story of former Georgia state representative Sally Harrell featured by Katherine Kam in the Babytalk magazine article “The Breastfeeding Mom’s Bill of Rights“:

[T]he more women who are out there speaking up for their rights, the more the prejudices will get chipped away. Georgia state representative Sally Harrell is one such trailblazer. When her son, Joseph, was 10 days old, the state House of Representatives went back into session. “I decided that because he was so young, I would take him with me.”

Not everyone was welcoming; in fact, several other representatives told the house speaker that they objected. “It’s very male-driven,” Harrell says. “I had to talk them into letting me bring the baby at all.” According to her, no other women in the legislature had ever tried to breastfeed on the job. “In the beginning, I’d borrow someone’s office, but when I got good enough, I nursed him on the floor because I realized that I was missing votes.”

“The first time I did it, it was really scary,” she adds. Even though she felt like everyone was watching, she kept nursing. Then she turned to a female colleague behind her and whispered, “We’re making history.”

Model of the Georgia Capitol building by Wvpress

Rep. Harrell co-sponsored legislation that eventually led to the 2002 amendment of the Georgia law which used to permit breastfeeding public only if the mother “acts in a discreet and modest way.” The Georgia law now reads:

31-1-9. Breast-feeding of baby. The breast-feeding of a baby is an important and basic act of nurture which should be encouraged in the interests of maternal and child health. A mother may breast-feed her baby in any location where the mother and baby are otherwise authorized to be.

What a wonderful example Sally Harrell set when she nursed her baby on the floor of the general assembly, and how great that she was able to make a difference for breastfeeding women in Georgia by eliminating those awful, subjective terms “discreet” and “modest”!

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Worst Breastfeeding Incidents of 2009

Angela White, J.D., breastfeeding counselor — Thu, 03 Dec 2009 12:09:01 +0000

Sadly, breastfeeding discrimination continues, as evidenced by the following stories of 2009:

Image courtesy of David Siqueira

1. Denny’s Restaurant harasses nursing mother. After Crystal Everitt was asked to cover up while breastfeeding at an Asheville, North Carolina, Denny’s restaurant, the regional management issued an unsatisfactory response. Local breastfeeding supporters went ahead with a nurse-in at the restaurant.

2. Dear Abby on pumping at work. Back in March, advice columnist Abigail Van Buren rightfully advised a woman not to be ashamed of pumping at work, but she failed to point out that a bathroom is not a pumping room and that California law protects pumping mothers in the workplace. The following June, the Dear Abby column published several follow-up letters with helpful information.

3. Parents Magazine advises being “discreet.” In April, I wrote to the Parents Magazine etiquette columnist about her belief that nursing in public is only okay as long as the breastfeeding mother is being “discreet” by utilizing shawls, scarves, dark booths and quiet corners.

4. Acosta Tacos fires woman for breastfeeding at work. The owner of Acosta Tacos in Los Angeles, California was ordered to pay Marina Chavez $21,645.00 in lost wages plus $20,000.00 for emotional damages after the owner fired Chavez for breastfeeding her baby on her breaks. In this groundbreaking case, the California Fair Employment and Housing Commission found that breastfeeding is intrinsic to the female sex and thus breastfeeding discrimination is sex discrimination under the Fair Employment and Housing Act (FEHA). The owner was also ordered to pay a $5,000 fine, establish a written policy on sex discrimination, and post a notice regarding the company’s FEHA violation.

5. Olive Garden requires modesty. In Michigan City, Indiana, Maggie Naas was asked to move to the restroom to breastfeed her baby because, according to that Olive Garden restaurant’s manager, she was not being modest enough.

6. Chick-Fil-A offers a towel to cover up. Thirty breastfeeding women staged a nurse-in at a Florida Chick-Fil-A after a mother was asked to cover her nursing baby with a towel. The mother attempted to contact the local and corporate management and apparently received no response. (One of my favorite pictures from the nurse-in shows the Chick-Fil-A mascot, a cow, looking on as a woman nurses. There’s a joke in there somewhere!)

7. Settlement negotiations between Emily Gillette and Delta Airlines end in lawsuit being filed. It’s hard to believe that it was three years ago that Emily Gillette and her family were asked to de-board an airplane when Ms. Gillette refused a flight attendant’s request to cover her 22-month-old nursling with a blanket. In October 2009 the Burlington Free Press reported that negotiations to settle the discrimination case collapsed and Ms. Gillette has filed suit in U.S. District Court in Burlington, Vermont.

Finally, an incident that I had to add after this post was already scheduled to publish:

8. Target store calls cops on breastfeeding mother. Earlier this week the mother of a four-week-old baby felt forced to leave the Target store in Harper Woods, Michigan after she disputed the security guards’ claim that breastfeeding in the store was illegal. Guess which store will not benefit from my holiday shopping this year? [Edited to add the good news that HB 5515, the pending breastfeeding discrimination bill in Michigan, passed out of committee on a vote of 11 to 2 after the hearing on December 2nd!]

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Breastfeeding Mother Forced to Leave Target

Angela White, J.D., breastfeeding counselor — Tue, 01 Dec 2009 22:22:53 +0000

Sadly I can’t say it surprised me to read that a breastfeeding mother in Michigan was forced to leave a Target store by the police. After all, on a recent visit to Target to buy a baby-related item, I received a coupon for artificial baby milk with my receipt. That certainly isn’t the mark of a breastfeeding-friendly corporation.

The ironically nipple-like Target bullseye; Photo by TheTruthAbout...

MyFOXDetroit.com reports that on Sunday at the Target store in Harper Woods, Michigan, the mother of a 4-week-old baby was told by security that breastfeeding in the store was illegal. When the mother and her off-duty police officer husband disagreed, the police were called and the mother was so embarrassed that she felt forced to leave the store! Target headquarters issued this statement in response to the incident:

This specific situation escalated to a point where we were concerned for the safety of our guests, so law enforcement was called. We regret the incident in our store and will continue to provide a shopping environment that respects the needs of all guests, including nursing mothers.

Unfortunately this is not the first instance of alleged breastfeeding discrimination by a Target store. Back in 2006 an employee in a Minneapolis, Minnesota Target store told a mother she could not nurse her baby in a fitting room. At that time, Target issued the following statement:

Target has a long-standing practice that supports breastfeeding in our stores. We apologize for any inconvenience the guest experienced and will take this opportunity to reaffirm this commitment with our team members.

For guests in our stores, we support the use of fitting rooms for women who wish to breastfeed their babies, even if others are waiting to use the fitting rooms. In addition, guests who choose to breastfeed discreetly in more public areas of the store are welcome to do so without being made to feel uncomfortable.

Aside from the “disceetly” remark that’s an okay response, except now it’s happened again in another store.

Michigan Breastfeeding Law

Currently the Michigan state law exempts breastfeeding from the public nudity statute. Breastfeeding may also be taken into consideration in child custody cases. This most recent Target incident demonstrates exactly why Michiganders need to support the pending breastfeeding legislation, House Bill 5515. HB 5515 would allow a woman to breastfeed anywhere she may otherwise legally be. The law would amend the Elliot-Larsen Civil Rights Act to state in part:

Sec. 302. Except where permitted by law, a person shall not: (a) Deny the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service to an individual because of religion, race, color, national origin, age, sex, or marital status or to a woman because she is breastfeeding a child.

I have written to the office of the sponsor of the bill to make sure she knows about this latest alleged breastfeeding discrimination in time for the legislative hearing tomorrow, December 2, 2009. Michigan mothers are invited to testify at the hearing.

[Edited to add the good news that after the December 2nd hearing, HB 5515 passed out of committee by a vote of 11-2!]

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Michigan Moms Needed to Testify

Angela White, J.D., breastfeeding counselor — Sat, 21 Nov 2009 05:39:16 +0000

Michigan Representative Rebekah Warren has introduced a new breastfeeding bill, House Bill 5515. HB 5515 would allow a woman to breastfeed anywhere she may otherwise legally be. The law would amend the Elliot-Larsen Civil Rights Act to state in part:

Sec. 302. Except where permitted by law, a person shall not: (a) Deny the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service to an individual because of religion, race, color, national origin, age, sex, or marital status or to a woman because she is breastfeeding a child.

To have breastfeeding viewed as a civil right is a wonderful and powerful thing and I hope all Michiganders will speak out in support of the bill!

How Michigan Mothers Can Help

MI State Rep. Rebekah Warren

There are two ways Michigan mothers and lactation professionals can help see this bill passed into law. HB 5515 has been referred to the House Judiciary Committee. Anyone who supports this legislation should write to all the committee members and to his or her own Representative and state that they support HB 5515. The committee is chaired by Rep. Mark S. Meadows. Here is a list of all the members and their email addresses:

Mark S. Meadows (D), Committee Chair, 69th District (markmeadows@house.mi.gov)
Ellen Cogen Lipton (D), Majority Vice-Chair, 27th District (EllenLipton@house.mi.gov)
Lisa Brown (D), 39th District (LisaBrown@house.mi.gov)
Bob Constan (D), 16th District; (bobconstan@house.mi.gov)
Marc R. Corriveau (D), 20th District ( marccorriveau@house.mi.gov)
Andy Coulouris (D), 95th District (andycoulouris@house.mi.gov)
Andrew J. Kandrevas (D), 13th District (andrewkandrevas@house.mi.gov)
Bettie Cook Scott (D), 3rd District (bettiecookscott@house.mi.gov)
Rebekah Warren (D), 53rd District (rebekahwarren@house.mi.gov)
Tonya Schuitmaker (R), Minority Vice-Chair, 80th District (tonyaschuitmaker@house.mi.gov)
Justin Amash (R), 72nd District (justinamash@house.mi.gov)
Joseph Haveman (R), 90th District (JosephHaveman@house.mi.gov)
Rick Jones (R), 71st District (rickjones@house.mi.gov)
Eileen Kowall (R), 44th District (EileenKowall@house.mi.gov)
Tory Rocca (R), 30th District (tonyrocca@house.mi.gov)

Malika Abdul-Basir, Committee Clerk 517-373-7256 (mabdul@house.mi.gov)

A resident may find out who his or her own Representative is at the Find a Representative tool.

The second way to support the bill is to testify before the committee. Michigan breastfeeding mothers are needed to testify on Wednesday, December 2, 2009, at 10:30 a.m. at the meeting of the Judiciary Committee in Room 521 of the House Office Building in Lansing. The House Office Building is at 124 N. Capitol, at the corner of Capitol and Ottawa in downtown Lansing. Anyone may testify, even without advance notice. If someone would like to testify but cannot attend, he or she may mail or email their testimony to Kim Easter in advance of the hearing. Even if someone prefers not to testify, his or her attendance at a hearing and personal correspondence with committee members and his or her own legislators are important in influencing the decision-making process.

Tips for Testifying before the Committee

The purpose of testimony given should be informational so that committee members can vote on the bill with as full an understanding as possible of all sides of the issue it addresses, and the consequences of its passage. A witness should prepare testimony in advance and keep the testimony short and to the point.

When you testify, identify who you are and, if you represent a group, give the name of the group. At the beginning of your remarks, state that you are testifying in support of the bill. Relate your group’s or your own experience or views directly to the issue.

If you are asked a hostile question, keep a cool head. Don’t be afraid to stop and think for a minute to answer a question properly. If you don’t have the answer, never guess—request permission to file a detailed response at a later date.

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We’ll Be Back, Arnold

Angela White, J.D., breastfeeding counselor — Wed, 21 Oct 2009 03:38:14 +0000

In a disappointing and short-sighted move, California Governor Arnold Schwarzenegger recently vetoed two breastfeeding bills. One was the bill I took the time to ask my state senators to support — SB 257 the Pavley-Employee Notification/Lactation Accommodation that would have required state entities to inform pregnant employees about the existing California law that requires workplace lactation accommodation.

California Governor Arnold Schwarzenegger, Image: Zuma Press

Governor Schwarzenegger believed that there was not adequate evidence that mothers are not aware of their right to workplace lactation accommodation. However, the California WIC Association sponsored the bill in the first place because it found that state agencies do not always advise pregnant women of their rights and state employees had expressed frustration at that fact. The bill had no opposition and found extensive public support.

The second vetoed bill was AB 513 — DeLeon-Healthcare Coverage/Breastfeeding, which would have required specified health care service plans and health insurers to include coverage for lactation consultation and for the rental of breast pumps. Governor Schwarzenegger said that this bill “will only serve to increase the overall cost of health care.” Such a statement fails to recognize that any money spent on breastfeeding support actually ends up saving money and lowering health care costs through the improved health of the baby and mother! The California WIC Association notes, “It has been shown that infants who are breastfed exclusively for three months have reduced health care costs of up to $475 in the first year of life alone compared to non-breastfed infants.”

Where Do We Go from Here

What can be done now? The California WIC Association asks interested parties to send letters to the editor to five major media outlets. It provides sample letters and fact sheets about the bills. Californians can also call the Governor at 916-445-2841 to express disapproval of his veto on AB 513 and SB 257.

It takes a long time and a lot of effort by breastfeeding advocates to get such legislation passed. What a disappointment to see Governor Schwarzenegger veto those bills after they passed the state legislature. Hopefully the bills will get re-introduced in future years. That’s right Arnold, we’ll be back.

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Michigan Breastfeeding Legislation Sponsors

Angela White, J.D., breastfeeding counselor — Sat, 19 Sep 2009 06:18:14 +0000

Great news out of Michigan this month! State representatives Rebekah Warren and Tonya Schuitmaker plan to introduce a resolution and a bill in support of mothers’ right to breastfeed. Rep. Warren states:

Michigan is one of only a handful of states that still fails to protect breastfeeding moms from being harassed, segregated, or otherwise discouraged from breastfeeding in public. Breastfeeding moms must be allowed to feed their infants wherever they may otherwise legally be. This is more than a lifestyle choice; it is an important health choice.

While the bill has not been formally introduced in the House yet, it appears that it will be the kind of bill lactivists particularly like to see — the kind that treats breastfeeding as a civil right. Representative Warren made the call for action:

Let’s add breastfeeding mothers to the list of those protected under Michigan’s Elliott-Larsen Civil Rights Act. No longer will Michigan’s breastfeeding mothers be banished to feed their children in toilet stalls and broom closets.

This legislation is a long time in coming. Remember way back in February 2007 when I wrote about a Lactivist Call for Change in Michigan after a mother was told she could no longer breastfeed her son at daycare? Good thing breastfeeding advocates in Michigan have been busy since then. In August the Michigan Breastfeeding Network submitted a petition to state legislators:

We, the undersigned, are concerned citizens who urge our leaders to act now to support the following: A mother may breastfeed her child in any location public or private, where the mother is otherwise authorized to be present.

It’s clear those grassroots efforts paid off! Good work Michigan lactivists and thank you Representatives Warren and Schuitmaker for agreeing to co-sponsor the breastfeeding bill.

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Breastfeeding Laws in the News

Angela White, J.D., breastfeeding counselor — Mon, 24 Aug 2009 08:07:08 +0000

It never fails to amaze me how companies manage to get themselves into hot water for failing to follow the law regarding breastfeeding in public or in the workplace! Here are just a few of the most recent incidents.

Acosta Tacos: The owner of Acosta Tacos in Los Angeles, California has been ordered to pay Marina Chavez $21,645.00 in lost wages plus $20,000.00 for emotional damages after the owner fired Chavez for breastfeeding her baby on her breaks. In this groundbreaking case, the California Fair Employment and Housing Commission found that breastfeeding is intrinsic to the female sex and thus breastfeeding discrimination is sex discrimination under the Fair Employment and Housing Act (FEHA). The owner was also ordered to pay a $5,000 fine, establish a written policy on sex discrimination, and post a notice regarding the company’s FEHA violation.

Photo by Hattisburgmemory

Olive Garden: In Michigan City, Indiana, Maggie Naas was asked to move to the restroom to breastfeed her baby because, according to that Olive Garden restaurant’s manager, she was not being modest enough.

Chick-Fil-A: Thirty breastfeeding women staged a nurse-in at a Florida Chick-Fil-A after a mother was asked to cover her nursing baby with a towel. The mother attempted to contact the local and corporate management and apparently received no response. (One of my favorite pictures from the nurse-in shows the Chick-Fil-A mascot, a cow, looking on as a woman nurses. There’s a joke in there somewhere!)

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Michigan Prohibits Nursing in Moving Cars

Angela White, J.D., breastfeeding counselor — Tue, 28 Jul 2009 12:31:45 +0000

Believe it or not, Michigan law used to allow babies to be out of their car seats if they were nursing. At the time I assumed it was a misguided nod to the Big Three and all things automotive. The car is king! Keep it moving! Despite the unsafe nature of the law, I appreciated the apparent belief in the importance of breastfeeding.

Michigan's Mackinac Bridge (Photo by Cece Chen)

However, Michigan recently chose to tighten its car seat ~~belts~~ laws. Local News Channel 3 WWMT explains:

The legislation now also prohibits removing a child from a car seat to nurse while the vehicle is in motion. Babies should only be nursed once the vehicle has been stopped in a safe place. With this change, Michigan is now eligible for additional federal traffic safety funds.

My spies tell me that some Michigan moms questioned why the new law specifically references breastfeeding. If you say that babies always need to be in their car seats when the vehicle is in motion, then arguably you do not need to say there is no exception for breastfeeding. However, the past exemption and recent cases of mothers driving while breastfeeding make the clarification a good idea!

What about you, moms? Have you ever taken your baby out of the car seat to nurse while the vehicle is in motion (you can post anonymously)? Have you ever gotten out of your seat belt to nurse your baby still strapped in the car seat (trust me, it can be done, even if it’s not safe)? Or do you always keep on driving with a screaming baby until it is safe to pull over to nurse?

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Breastfeeding Promotion Act Progress

Angela White, J.D., breastfeeding counselor — Mon, 13 Jul 2009 17:41:41 +0000

Since the Breastfeeding Promotion Act of 2009 was first introduced in Congress a month ago, three new co-sponsors have committed to the bill (two from New York and one from Guam), bringing the total number of sponsors up to 13 in the House and two in the Senate. Senator Jeff Merkley, the original sponsor in the Senate, offered the Breastfeeding Promotion Act as an amendment to the Senate Health Committee health care reform bill and it was accepted! While it may not make the final cut, this is tremendous progress! The D.C. Breastfeeding Coalition promises to let us know when it is time to start contacting our senators to ask that the Breastfeeding Promotion Act remain a part of the final version of the health care reform bill, which I believe is S. 486.

In the meantime, please continue to spread the word through the Facebook page for the Breastfeeding Promotion Act of 2009, which now has 2,367 members! Write a personal letter to your senators and representatives asking them to co-sponsor the bill!

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