Leave Breast Pumping to Contracts, Social Pressure

Did the Rocky Mountain Academy of Evergreen, a tax-funded Colorado charter school, decline to renew a teaching contract for Heather Burgbacher because she pumped breast milk at work? That’s the allegation of the ACLU (and a one-sided story from 7News).

Or was Burgbacher let go for an entirely different reason? The Denver Postreports, “Jefferson County school district spokeswoman Lynn Setzer said Burgbacher was a technology teacher who worked under a yearly contract. Setzer said Burgbacher wasn’t retained because her position was transformed into a technology adviser to staffers and the school didn’t think she was a good fit.”

We will never know for sure. The anti-discrimination laws incentivize employees to claim they were let go because of mistreatment, and they incentivize employers to claim the fault lies with the employee.

Another question we will never have answered is whether the ACLU saw the lawsuit as particularly juicy because it targets a charter school, something typically despised by the left.

The only thing crystal clear about the case is that the Colorado and federal laws on which it is based are entirely ambiguous. Consider this description from the Colorado Department of Labor:

An employer shall make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where an employee can express breast milk in privacy.

Reasonable efforts means any effort that would not impose an undue hardship on the operation of the employer’s business.

Undue hardship means any action that requires significant difficulty or expense when considered in relation to factors such as the size of the business, the financial resources of the business, or the nature and structure of its operation, including consideration of the special circumstances of public safety.

And who gets to decide what constitutes “reasonable,” “undue,” and “significant?” You guessed it… lawyers.

Now, I definitely agree that, in most contexts, employers certainly should allow employees time and space to pump breast milk. This is especially true in an educational setting, as it offers children an opportunity to learn something about childbirth, nutrition, and immunity.

But just because something is a good thing doesn’t mean the legislature should get involved. Many jobs already involve an employment contract. (As a tax-funded entity, a charter school properly falls under additional rules not applicable to private businesses.) And most businesses would rapidly cave to social criticisms about lack of accommodation.

For marginal jobs, often the very jobs that poor women need, the additional risk of (perhaps groundless) lawsuits could well mean the elimination of the job. So the real impact of the Colorado law is to protect wealthier yuppie women, who don’t really need protecting anyway, and make it harder for poor women to get any job at all.


ziolus posted the following comment on May 11, 2012 at 10:02 AM:
I was fired for pumping milk at work as well under Colorado state law as well. from a company called teletech. I put my story on youtube if it gives you any help. http://www.youtube.com/watch?v=a9IjL8na0UE

Ari Armsmtrong posted the following comment on May 11, 2012 at 10:50 AM:
Please note that I have NOT independently verified the claims made in the previous comment, nor can I attest to their accuracy. -AA