This week a judge in Houston ruled in favor of an employer who fired an employee who wanted to use a breast pump to express milk during work for her child.  Donnicia Venters went on company-approved leave for a pregnancy from her job at a Houston collection agency in late 2008.  When she called to return to work, the company owner was very friendly until Venters requested to use a backroom to pump milk for her child.  When Venters made the request, the company owner changed his tune saying that Venters’ spot had been filled.

Venters made a complaint with the EEOC and the EEOC took the employer to court alleging that the employer’s conduct was considered pregnancy discrimination.  After hearing argument this week, the Houston judge tossed Venters and the EEOC out on their respective ears.  Many folks are up in arms.  How is this fair?  What does the Houston judge have against pregnant women?  Is the justice system broken?

In a word, “no”.  While I do not hold the employer in very high regard for his disrespect to the employee, the judge (in my humble opinion) was not wrong.  I don’t really think Congress considered breastfeeding or expressing milk when it wrote the pregnancy anti-discrimination law.  The language of the law does not clearly or logically protect breast feeding mothers after they return to work.
Enter the Patient Protection and Affordable Care Act (“Affordable Care Act”) signed into law in March 2010, which very clearly provides that employers must give a break and a private place for nursing mothers to express milk for their newborn.
The Affordable Care Act did not go into effect in time to protect Ms. Venters, but employers must now offer a “reasonable break time” for nursing mothers to express milk as often as necessary.  The employer must offer a private space for the employee to take the break, but a restroom (even if private) will not suffice.  Employers do not have to pay the employee during the breaks, but if the employee already receives a paid break time, that time may be used.
Employers with less than 50 employees can skip out on this requirement, but only if they can show an undue hardship.  Be careful though, the Department of Labor is unlikely to side with employers in a close call.  If you think you should be exempt, check with your lawyer for some advice.
If the law was really clear before – why would Congress need to pass something so deliberately clear.  Answer: Kelsheimer is right, the law wasn’t really all that clear.