As part of the Patient Protection and Affordable Care Act of 2010 (also known as “Obamacare”), Congress passed a new law requiring employers to provide accommodation to working mothers who want to express breast milk while at work. This accommodation requirement is a step forward from the preceding legal regime, under which federal courts consistently found that “lactation discrimination” did not constitute sex discrimination. But this Article predicts that the new law will nevertheless fall short of guaranteeing all women the ability to work while breastfeeding. The generality of the Act’s brief provisions, along with the broad discretion it assigns to employers to determine the details of the accommodation provided, make it likely that class- and race-inflected attitudes towards both breastfeeding and women’s roles will influence employer (and possibly judicial) decisions in this area. Examining psychological studies of popular attitudes towards breastfeeding, as well as the history of women’s relationships to work, this Article concludes that both are likely to negatively affect low-income women seeking accommodation under the Act, perhaps especially those who are African-American. In short, the new law could lead to a two-tiered system of breastfeeding access, encouraging employers to grant generous accommodations to economically privileged women and increasing the social pressure on low-income women to breastfeed, without meaningfully improving the latter group’s ability to do so.
Nancy Ehrenreich & Jamie Siebrese,
Breastfeeding on a Nickel and a Dime: Why the Affordable Care Act's Nursing Mothers Amendment Won't Help Low-Wage Workers,
Mich. J. Race & L.
Available at: https://repository.law.umich.edu/mjrl/vol20/iss1/2