Failure of an employer to allow an employee to breastfeed during her rest break can subject the employer to a sex discrimination lawsuit and hefty damages.  Just ask the owner of Acosta Tacos in Los Angeles.

In a "precedential decision" by the Fair Employment and Housing Commission ("FEHC"), which regulates and enforces California’s anti-discrimination laws in the workplace, the FEHC has determined that breastfeeding is an activity intrinsic to the female sex.  Accordingly, termination of an employee in violation of her right to return to work from pregnancy disability leave because she was still breastfeeding is discrimination on the basis of sex (a violation of Cal. Gov’t Code section 12940, subdivision (a), and 12945, subdividsion (a)).

In the case, the employer, Acosta Tacos, was ordered to pay $46,645.00 in damages in a workplace pregnancy discrimination case that was prosecuted by the Department of Fair Employment and Housing ("DFEH") before the FEHC.  After a two-day hearing, the FEHC, in a precedential decision, found that Acosta Tacos’ termination of Marina Chavez because she insisted on her right to return to work, and her right to nurse her baby, violated the Fair Employment and Housing Act’s ("FEHA") prohibition against sex discrimination.  See Dept. Fair Empl. & Hous. v. Acosta Tacos (Chavez) (FEHC Precedential Decision 09-03P [2009 WL _____ (Cal.F.E.H.C.)] filed 6/19/2009).

Working as a cashier for Acosta Tacos since 2004, Chavez learned she was pregnant in October 2006 and began her pregnancy disability leave on April 30, 2007, due to premature labor. On May 30, 2007, Chavez attempted to return to work, but the employer told her she could not because her job had been filled.   On June 1, and then again on June 2, Chavez was called into work to cover a shift for an absent employee.   Upon learning on June 2 that Chavez had nursed her baby in her car during her break the preceding night, the employer told Chavez he did not want her working as long as she was breastfeeding — a fact he admitted at the FEHC’s hearing. When Chavez protested that she needed her job back immediately to support her family, the employer told her he did not like her attitude, could no longer use her, and fired her.

Finding the employer liable for sex discrimination, retaliation, and failure to prevent discrimination, the FEHC ordered the employer to pay Chavez $21,645.00 in lost wages plus $20,000.00 to compensate her for her emotional suffering.   The FEHC also ordered her to pay the state’s General Fund a $5,000.00 administrative fine; develop a written policy, printed in English and Spanish, prohibiting sex and pregnancy discrimination in the workplace; train all employees and supervisors on the policy; and post a notice stating that the FEHC found the company violated the FEHA and ordered it to pay damages.  

With all the California laws supporting and facilitating breastfeeding in the workplace, employers need to be aware of these legal obligations and insure that they are in compliance because a failure to do so can now expose an employer to additional liability for sex discrimination.