Breastfeeding and a New Type of Employment Law

44 Pages Posted: 11 Jul 2014

See all articles by Marcy Lynn Karin

Marcy Lynn Karin

University of the District of Columbia David A Clarke School of Law

Robin Runge

Independent

Date Written: 2014

Abstract

Buried deep within the Patient Protection and Affordable Care Act is section 4207, a little-noticed provision that amended the Fair Labor Standards Act to provide protections for some women to express milk at work. Section 4207 borrows concepts from existing labor standards and employment discrimination laws to offer job-protected break time and space-related accommodations for breastfeeding purposes. Unlike these prior employment laws, however, these protections are designed to achieve public health goals for a relatively small subgroup of individuals: non-exempt working women who choose to express milk for children under the age of one. The use of employment law to promote public health is not novel, but the decision to place breastfeeding protections in this framework must be considered within the larger context of employment law.

In its examination of this new law, this Article places section 4207 in the broader civil rights context and examines how legislation aimed to achieve goals outside the civil rights context may still nonetheless effectively address historical discrimination and societal oppression. The employment provisions of this new law represent a shift away from traditional labor standards designed to improve employment conditions for all workers and traditional employment discrimination provisions used to address historic discrimination. Its unique combination of protections and its focus on one particular class of workers facilitates the consideration of whether the government should enact workplace legislation to promote healthcare-based conduct. This Article considers, and ultimately rejects, the incorporation of limited employment rights that place symbolic requirements — without more — on employers for a public health purpose.

Keywords: employment, labor standards, discrimination, accommodation, breastfeeding, lactation, express milk, women, work, PPACA, class, gender, health policy

Suggested Citation

Karin, Marcy and Runge, Robin, Breastfeeding and a New Type of Employment Law (2014). Catholic University Law Review, Vol. 63, No. 2, 2014 Forthcoming. Available at SSRN: https://ssrn.com/abstract=2464567

Marcy Karin (Contact Author)

University of the District of Columbia David A Clarke School of Law ( email )

4200 Connecticut Avenue NW, Bldg. 52
Washington, DC 20008
United States

Robin Runge

Independent ( email )

No Address Available

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