Would You Like Some (More) Sexism With That?

There's been a great deal of interest in the case I blogged about last week, in which Angela Ames, a Nationwide Insurance worker alleged that she was denied a place to pump breast milk when she returned to work from maternity leave, and then was forced to resign by her supervisor.

In addition to the righteous outrage over the facts of her case, there has also been quite a bit of confusion and disbelief that this could have actually happened as well as some misleading headlines. We thought it would be useful to walk through in more detail exactly what the courts did –and did not do – in her case, and how they managed to ignore blatant sex discrimination.

Men Can Lactate Too

The aspect of the case that caught the most attention is the statement that firing someone because they are breastfeeding is not sex discrimination because men can lactate.

@galenleigh I'm looking at 8th's Ames decision and can't see where "because men can lactate" is mentioned. Help?

-Jamie McCarthy (@jamiemccarthy); 4 February 2015 2:25 pm

Some of the initial reporting on the story, including a Rawstory article which was widely picked up, missed that this was part of the trial court decision dismissing Angela's case, suggesting that this it was the 8th U.S. Circuit Court of Appeals or even the Supreme Court that said this—thus leading to understandable confusion.

As a Snopes article correctly points out, the "men can lactate" finding was not mentioned in the 8th Circuit's ruling upholding the district court's dismissal of her case. Rather, the appeals court agreed with the district court that Angela had not been forced to resign, completely ignoring the lower court's outrageous statements regarding the "gender neutral" discrimination Angela was subjected to – including the ruling that discrimination based on breastfeeding is not sex discrimination. The Supreme Court declined to take up her case, leaving both lower court decisions in place without weighing in on their reasoning.

But the Snopes piece also minimizes the significance of the district court's statement, concluding that "this was not the primary basis for the court's decision." It is true that this comment was in a footnote, and that it was but one of the many reasons the court gave for dismissing her case. But it was still one of the reasons the court gave for its ultimate determination that Angela did not face sex discrimination.

Here's exactly what the trial court said:

[L]actation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production…. Accordingly, lactation is not a physiological condition experienced by women who have recently given birth.

As Amanda Marcotte wrote on Slate, "The fact that the original court latched onto such a silly argument suggests an unwillingness to take Ames' case seriously from the get-go, which casts a pall over the entire ruling."

She's right. It only adds insult to injury that the court came up with this novel argument all on its own.

"Just Go Home And Be With Your Babies"

The district court's response to the "just go home and be with [her] babies" was similar. The court reasoned that this was not evidence of sex discrimination because it was "based on Ames's gender-neutral status as a new parent," further explaining that "[b]eing a parent is not gender-specific as this class also includes men and women who will never become pregnant."

It's true, men are parents too – and it's also true that men can lactate under certain circumstances. But it's nearly impossible to imagine someone actually saying this to a new father on his first day back at work.

In reality, both things happen overwhelmingly to women. Emma Cueto observes on Bustle, "Welcome to America! Where gender binaries are completely biologically determined and totally absolute when we're refusing to recognize trans people, but as soon as it's time to give women rights in the workplace we can't wait to talk about male lactation."

Waiting Three Days to Pump – Not Intolerable?

The part of the district court decision that the appeals court agreed with was that Angela had not done enough to protest her treatment before resigning. The district court found that although the conditions at work may have been "less than ideal and, arguably, unpleasant," they were not "intolerable"– and the appeals court agreed, finding that "Nationwide's several attempts to accommodate Ames show its intent to maintain an employment relationship with Ames, not force her to quit." As Tracy Thomas writes on the Gender and the Law blog, "Really? If you say so."

Let's remember that when Angela asked to use the lactation room, she was told she would have to wait three days for badge access. As any woman who has breastfed knows, you simply cannot wait three days to pump – waiting even three hours can lead to serious pain and risk of infection. And while some of the facts were disputed, that's exactly why the district court should have let her case go to trial. Instead, both the district court and the appellate court failed to recognize that a reasonable woman might consider this situation intolerable. As one blogger put it, "I wish the judge—any of them—had put him or herself in Ames' nursing bra."

Angela's case is an example of how the lower courts systematically found ways to ignore blatant sex discrimination – even in the face of a smoking gun comment like "just go home to be with your babies." And although the Supreme Court declines cases all the time, this still adds to the overall message that even a case so rife with sex stereotypes is hardly worth the courts' time.

As I wrote in my original post:

Angela's case shines a harsh light on the multi-layered workings of structural discrimination: Workplace policies that don't make space for the realities of pregnancy and motherhood, employers' entrenched sex stereotypes and implicit bias, and courts that – despite decades' old legal protections – still manage to turn a blind eye to the pervasive discrimination faced every day by working women.

In other words, the courts have dealt Angela an injustice on top of an injustice, with a huge extra serving of sexism on top.

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Anonymous

This article ignores the fact that this women was doing a personal task on company time. I assume that this women was getting paid to work, but instead chose to pump breast milk. Had she done it during her lunch break, this would not be an issue. But she was doing it on company time in which she is most likely paid by the hour. You cannot expect a company to tolerate someone who does personal tasks during work hours.

Anonymous

It's simply outrageous that the ACLU would peddle a false urban legend debunked by Snopes, the nation's oldest law blog, and employment lawyer Philip Miles.

The Supreme Court never suggested that if the plaintiff had been fired because she was breast-feeding, that was not sex discrimination, in part because men can lactate under certain circumstances. It never ruled on this case! It has ruled in favor of working women in cases like Guerra and Hibbs.

The Eighth Circuit Court of Appeals never said, or hinted, anything of the kind, in dismissing the plaintiff's claim based on longstanding precedent about what constitutes a discharge or constructive discharge. As Lawyer Philip Miles notes, "the Eighth Circuit did not address the male lactation issue at all. Not even a little. No mention whatsoever. Instead, the Eighth Circuit upheld the district court's decision that the employee was not constructively discharged."

It is ludicrous to see people latch on to the ACLU's misleading description of the case to claim the Supreme Court said something ludicrous that it never said, in a case it decided not to even hear, based on something said not by it, but by a trial judge in in dictum, in a footnote, in a ruling that was later upheld on entirely different grounds by a federal appeals court (again, in a case that the Supreme Court never even heard).

The Supreme Court did not even hear this case, and as it explained in footnote 11 of its decision in Shaw v. Delta Air Lines (1983), “denials of certiorari have no precedential force.” It did not "uphold" anything, or say or do anything controversial, much less sexist.

The Supreme Court, in not even hearing the case, can’t be said to have adopted or agreed with the bizarre male-lactation footnote in the district court's dictum (reasoning that was in tension with Supreme Court decisions like Guerra and Hibbs, which show fairness towards working women).

Greg Dwyer

If the three day waiting period is such a hassle, why have no other women complained? Maybe it's that they actually took the time to research what needed to happen before it happen. She could easily have stopped in at her office a few days prior and filled out the paperwork.

Anonymous

Sometimes I can't tell if I"m reading stories on the ACLU or on Infowars, both are equally ridiculous and devoid of fact.

Anonymous

Excuse me for saying so but I'm a paramedic and I think that's the dumbest thing I ever heard.
Whenever men HAVE lactated it's been the subject of or opportunity for private attorneys to announce a major lawsuit so they can make money off the medical profession IMO. It's always been related to either a side effect of medicine or a disease. Either way, neither is normal and has nothing to do with women lactating or why they do it, and they don't send men home for it. They sit there and whine and pity and bemoan the man's plight. In fact, the attorneys who claim they'll represent you in a lawsuit call male lactating "embarrassing" and hint at how it will psychologically damage a man forever, otherwise why on earth is it even worthy of a lawsuit.
I've never met ANYthing more frail and acting as if it were made of blown glass than a damn male ego. Anyone who thinks a man lactating is going to leave "terrible emotional scars" has never seen real psychological abuse.
They can't even handle being shaved in small spots before getting an EKG bc a wee bit of their man-hair will have to grow back. Most of them are like that. I've met very few men who don't have a vast issue with it.
It's almost as if, 'They could be dying but don't shave a strand of their man-hair.'

Anonymous

this is the most disgusting thing to do deny woman her rights and then fire

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