Can Texas Employers Ban Breastfeeding? - The Houston Employment Law Blog

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Can Texas Employers Ban Breastfeeding?

Following the public outcry over a Victoria's Secret customer who was not allowed to breastfeed in a fitting room, customers and business owners alike are wondering whether Texas employers can legally ban breastfeeding.

The answer to that question depends on a range of factors, including a woman's right to breastfeed and her right to accommodations.

Right to Breastfeed

Chapter 165 of the Texas Health and Safety Code addresses the Lone Star State's law on breastfeeding in public. The state's provision on the right to breastfeed provides that "a mother is entitled to breast-feed her baby in any location in which the mother is authorized to be."

As applied to the Victoria's Secret customer, it's possible the breastfeeding mother had a legal right to express milk in one of the fitting rooms. The lingerie store employee may have violated the state breastfeeding law by denying the customer a space in which she was authorized to be.

While a wholesale ban on breastfeeding may not be permissible, effectively banning breastfeeding by not providing accommodations is a more pressing issue.

Right to Accommodations

Part of the Patient Protection and Affordable Care Act contains an amendment to the Fair Labor Standards Act ("FLSA") that requires employers to provide nursing mothers unpaid break time to express milk.

Under Section 7 of the FLSA, employers with at least 50 employees must provide "a reasonable break time" for a non-exempt employee to express breast milk, for up to 1 year after the birth of a child. An employer must also "provide a place, other than a bathroom, that is shielded from view" for the employee to express breast milk.

The Texas legislature also created the Texas Mother-Friendly Worksite designation to recognize businesses that have an employment policy that supports breastfeeding.

The law on "lactation discrimination" is a different story, however. In 2012, a federal judge in Texas dismissed an employment discrimination case in which a Houston woman was fired for requesting permission to pump milk at work. The judge ruled there is no cause of action for "lactation discrimination" under the Pregnancy Discrimination Act because "lactation is not pregnancy, childbirth, or a related medical condition."

Breastfeeding laws are far from clear-cut. But the Victoria's Secret situation shows that limiting a woman's ability to breastfeed can lead to more hair-raising consequences than the sight of an exposed breast.

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