As you may know, I am a die-hard management lawyer. For example, I recently saw a production of J.B. Priestly’s, “An Inspector Calls.” The titular Inspector forces various members of a wealthy family in Edwardian England to examine their roles in putting a young woman on the path to suicide. In particular, the father had fired the young woman from his factory for being a labor agitator. I know I was supposed to sympathize with the young woman, but I frankly thought the father had behaved in an completely understandable manner (although, of course, it would now be a violation of the National Labor Relations Act to do so). My husband told me, “Well, I guess you’re in the right profession.”

But every now and then, there is a case that just smacks of unfairness to me, even though it may be legally correct. Frederick v. State of New Hampshire was just such a case.

The employee’s new baby had difficulties with bottle feeding. In addition, the employee’s doctor provided a letter explaining that the employee should breastfeed as must as possible to minimize her anxiety disorder. In preparation for returning to work, the employee asked for either an extended break time to go to her baby’s nearby daycare center to breastfeed, or to have her baby brought to her and to be allowed to breastfeed her baby in the employer-provided lactation room.

The employer, the New Hampshire Department of Health and Human Services (yes, the very agency that is, according to its website, “responsible for the health, safety and well being of the citizens of New Hampshire”), refused to allow the employee extended break times or to leave the work premises during her regular break times. It also refused to allow her to breastfeed in the lactation room (telling her, “It’s just for pumping” and that allowing her to do so would be “too disruptive”), although it subsequently told her she could breastfeed in any public area (as state law requires).

The employee did not think that requiring her to breastfeed in public was acceptable. She did not return to work and was fired. She then sued HHS, claiming, among other things, that there were violations of the Pregnancy Discrimination Act (PDA) and the Break Time for Nursing Mothers provisions of the Fair Labor Standards Act (FLSA).

Although the court described HHS as exhibiting “unfortunate (even deplorable) insensitivity and intransigence,” it nonetheless (rather reluctantly) dismissed the employee’s lawsuit because there had been no legal violation.

The court first noted that the PDA prohibits employers from treating pregnancy-related conditions less favorably than other medical conditions, but does not require affirmative accommodations. In this case, the lactating employee was given the same breaks as other employees. Also, according to the court, the PDA does not protect the action of breastfeeding. Thus, the employee had no claim under the PDA.

As for the FLSA claim, the court noted that the law requires covered employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk…and a…place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” The law’s language only addresses expressing breast milk – not breastfeeding. Thus, the court found that the employee also had no claim under the FLSA.

The court termed HHS’s conduct “inexplicable.” I totally agree. It is particularly ironic, given the HHS’s mission statement:  “To join communities and families in providing opportunities for citizens to achieve health and independence.” Well, there’s at least one woman and her baby whose health needs were ignored by HHS!