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Business Briefing ‘Males can lactate’: Issues in an intriguing sex-discrimination case

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Just wrapping up in the United States is a sex discrimination case that's intriguing because of the issues raised.

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The case is over now, and the mother of two behind it lost when the Supreme Court of the United States last month rejected a review of a U.S. Court of Appeals ruling.

But it's sure to be a must-read among human resources professionals and working parents.

The case involved Angela Ames, a loss-mitigation specialist at Nationwide Mutual Insurance Co. since the fall of 2008, who sued the insurance giant, alleging discrimination over sex and pregnancy.

According to the court documents, her first child was in May, 2009, and she found out she was pregnant again that October. There were complications, and she was told by her doctor several months later to stay in bed.

Her son was born in May, 2010, and, the documents show, she was told her maternity leave would end in August. But then she was later told there was error, and in fact it would end in mid-July.

When she got back, after an extra week of leave, with her son just two months old, she needed a lactation room. Nationwide has such rooms, but there was paperwork that was needed, and then that had to processed over three days.

There are differences in the telling of who said what, but Ms. Ames was told she could use a wellness room within 20 minutes.

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She alleged she was also told that when she was on leave, her work wasn't completed, and that she had two weeks to get it done, and that perhaps might mean overtime. Nationwide disputed that.

She also alleged that was told by a supervisor that "I think it's best that you go home to be with your babies," and was effectively told how to write her resignation letter. Nationwide disputed that, as well.

By which point five hours had passed since she'd last expressed milk.

The original Iowa District Court decision dismissed her claims.

Among other things, where the "babies" comment was concerned, even if the supervisor did say it, that's not "direct evidence of discrimination."

And there was nothing to support a finding of constructive dismissal.

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And, the court said, she could have found out the details of the lactation policy beforehand.

"The court is not insensitive to the burdens and stresses associated with parenthood, particularly those experienced by new mothers," according to the decision.

"Being under stress, however, does not excuse Ames from doing what any reasonable person in her position would have done," it added.

"Therefore, the court concludes that no reasonable fact-finder would determine that the unavailability of a lactation room on July 19, 2010 would lead a reasonable employee in Ames's position to believe that her only option was to resign."

There's more, of course, but what may raise eyebrows was an explanation in the footnotes of the ruling:

"Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide defendants point out, 'lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy' …  Additionally, the court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies … Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production."

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It went so far as to cite a 2007 report in Scientific American titled "Strange but true: Males can lactate."

The American Civil Liberties Union, among others, supported Ms. Ames, saying that such a comment about being with your babies was found "most shockingly" to be gender-neutral.

And as for the issue of a man's ability to lactate, this "echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn't sex discrimination because both men and women can be non-pregnant," said Galen Sherwin, senior staff attorney at the ACLU's Women's Rights Project.

"Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act," she wrote on the ACLU's website.

"It's disheartening to see it resurface again."

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