Phila. Amendment Requires Accommodations for Nursing Mothers

On Sept. 3, Philadelphia Mayor Michael A. Nutter signed legislation that amends Philadelphia’s Fair Practices Ordinance, Phila. Code Section 9-1100 et seq., which applies to any employer with one or more employees, exclusive of parents, a spouse, life partner or children, to make it an unlawful employment practice for the employer to fail to reasonably accommodate an employee’s need to express breast milk. The reasonable accommodations include providing unpaid break time or permitting an employee to utilize paid break time, mealtime, or both, to pump breast milk. Further, the new law requires that an employer provide a private and sanitary space, which is not a bathroom, where an employee can express breast milk provided the requirements do not pose an undue hardship on the employer.

Philadelphia’s amended ordinance closely follows the Patient Protection and Affordable Care Act, which was signed into law by President Obama in March 2010 and which amended the Fair Labor Standards Act (FLSA), 29 U.S.C. 207, to require employers to provide accommodations for nursing mothers. Additionally, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued an Enforcement Guidance on Pregnancy Discrimination and Related Issues, which contains the EEOC’s position that an employer must provide a female employee with the same opportunity to address lactation-related needs that employees would have to address similar medical conditions. Significantly, the EEOC contends that any employment practice that singles out lactation or breastfeeding for less favorable treatment is sex-based, and therefore a potential violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, which protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex and religion, since the practice would only affect women. Specifically, the EEOC contends that an employer violates Title VII if it permits an employee to use break time for any personal reasons but makes an exception when it comes to a woman using the time to express breast milk.