Last year Julia Acevedo-Taylor claimed she was rudely asked to leave a Manhattan chocolate shop because she was breastfeeding her five month old. Last month, she filed a lawsuit against the shop. I'll be following that case – the first suit filed under the 1994 New York State public breastfeeding law – but watching a recent news report on the case I am struck most by the lack of discussion of the law.
Instead, there is a painful debate between a purported etiquette expert and a La Leche League Leader. Neither is talking about the law: what a woman is legally allowed to do. The debate is what she should do, followed up by a poll about whether women should be allowed to breastfeed in public. So did I miss something? Is the New York State legislature considering a bill to rescind current civil rights law that states a right to breastfeed in public? If not, why are these people having this discussion? If Julia Acevedo-Taylor has a legal right to breastfeed in public accommodations in New York State (which she does), why is there a "news" story about whether she should?
What other civil rights are people asked to forego to make restaurant patrons more comfortable? If Acevedo-Taylor were a man, would there be public debate about whether exercising her civil right is rude?
So have a look at this "news" story and tell me what you think. The beginning is a report on the original incident. It will probably make you really really angry. The owner denies Acevedo-Taylor was kicked out but said women could not breastfeed in his establishment without being "discreet" and covering up.
But then comes the "what should she do" discussion. The Countess of Etiquette thinks it is impolite to make people uncomfortable by feeding your baby with your breasts in public. And, by the way, her 13 year old son is very upset seeing breasts. Hmm. The La Leche League Leader is trying to avoid the question by saying breastfeeding isn't actually disruptive. Nice try but not the reason she was there. Were I interviewed on this question (and I have been many times, even by Fox News), I would insist on discussing the real issue. When you have a legal right, you can exercise it regardless of whether it makes people uncomfortable. What you should do is whatever legal act you feel comfortable doing. Those made uncomfortable by seeing breastfeeding are free to retreat to private space.
Please let me know what you think about how this news story is presented? Should we even be talking about nursing "discreetly"?
Much of my work as a breastfeeding advocate/lawyer is about securing a right for mothers to be in public space. That means having a protected legal right to engage in the act of mothering in all the places people get to be. Mothers must own the public space along with all other citizens.
This striking photograph vividly represents the position breastfeeding women are forced into by a definition of public space that excludes mothers as mothers. In order to mother, she must hide in dark corners. Society views her as refuse – necessary but to be kept where no one has to look at it.
See other photos from this extraordinary exhibit on Facebook – at least until the areola police takes it down (see here and here).
So is the photograph shocking or beautiful or does it elicit some other response from you? Anyone ever make you feel like you should breastfeed by the dumpster?
After much speculation on the impact of a new federal law requiring certain employers to give unpaid pump breaks to certain employees (and my advice to Curb Your Enthusiasm), the U.S. Department of Labor has issued a Fact Sheet.
Fact Sheet #73: Break Time for Nursing Mothers under the FLSA restates the requirements of the amendment to the Fair Labor Standards Act which went into effect this past March and which requires unpaid breaks for certain employees to pump breast milk and private space in which to pump.
While the text of the Fact Sheet provides little clarification of the new law – the penalty to employers for violating the law is still unclear – and is not an official position statement or regulation, it may indicate the Department of Labor is better prepared to accept complaints than it was in March.
Employees seeking more information should "call [the DOL] toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243)." While there have been no public reports of employees using this new law, I have also seen no reports of the DOL rejecting complaints. Any nursing mother having trouble with employer compliance with the federal workplace pumping law should feel free to write about it here.
The workplace pumping provision of the federal health care bill sounds like great news for women who pump breast milk in the workplace. Who could complain about a federal requirement that all employers give reasonable unpaid breaks to employees who need to pump for their nursing infants? On closer examination of what the law actually does, I think many of you will complain.
On its face, the new law, Section 207 (r) of the Fair Labor Standards Act(FLSA), requires unpaid break time for employees to pump breast milk for a child under age one. In a country that truly supports breastfeeding mothers and their children, women should be paid for pumps breaks. Children should breastfeed until at least a year so mothers can pump for as long as their children need them to. The new federal law has a hardship exception for employers of fewer than 50 employees. It is still unclear how many employers will evade the new requirements under an as yet undefined hardship exception.
But the problem with the new federal workplace pumping law is much bigger than all that. The problem is that there may be no way for most women to use it at all.
Go back to the FLSA. To be covered by new Section 207 (r) you have to be an employee to whom the FLSA applies in the first place.
Basically that means that if you get a salary, you are probably not covered by the FLSA and not entitled to whatever new federal workplace pumping benefits there are. Well then, the exempt workers should at least be happy for the nonexempt – the hourly workers, those women covered by Section 207 (r), right? Well, hang on.
The first thing I researched about the new federal workplace pumping law was whether there was a penalty for employers that don't comply. Finding the answer is much harder than it would appear. Go back and read the text of the bill. No, you didn't miss it. There is nothing about enforcement, penalties or remedies.
But you can't stop there because new subsection (r) is an amendment to Section 207 of the Fair Labor Standards Act of 1938. (I know this is confusing but ride along with me.) So you need to go to the FLSA and read Section 207. See if Section 207 has some enforcement, penalties or remedies. Hmm. Nope. So then you read the entire FLSA. (Actually, you don't need to unless you want to. I reread it for the first time since law school.)
There are lawyers who do exclusively FLSA work but, fair warning, I am not one of them. You can find the penalties though. Section 216, which is long and convoluted. From what I can tell, penalties are available if the employer's violation resulted in lost wages or unpaid overtime pay. But Section 207 (r) specifies that pump breaks are to be unpaid. So it appears that an employee would have to get fired to have lost wages. And women don't want to get fired over needing to use a breast pump at work.
In the real world, if an employee can't get pump breaks or a pump space, she needs an order, either from a court or a government agency, requiring the employer obey the law. What she needs is an injunction. But for injunctive relief under the FLSA, you need to look at Section 217. Did you read it? No mention of it applying to Section 207.
So what will happen to an employer who refuses to comply with the new federal workplace pumping mandate? So far, I haven't been able to find a labor lawyer who can tell me. And that makes me wonder whether the answer is "nothing at all."
The Department of Labor, Wage and Hour Division, has the ability to issue "Administrator Interpretations" which clarify what the FLSA means. However it is unknown when any will be issued concerning employer obligations under Section 207 (r). Unless there are complaints filed, Wage and Hour will have no reason to issue any "Interpretations."
Now, some employers are going to provide break time and pump space to all employees who need them. Some employers already do. As I wrote in Pumping 9-5 in Mothering back in 2008, 26% of all U.S. employers provided some sort of lactation support in 2007. But the study from which that figure comes does not specify how much lactation support. It is unlikely that a quarter of all U.S. employers give both unpaid break time and a place to pump that meets the requirements of the new FLSA Section 207 (r): "a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public."
So what should you do if you are an hourly worker whose employer is not complying with FLSA Section 207 (r)? Contact the U.S. Department of Labor, Wage and Hour Division at 1-866-487-9243. Look around the Wage and Hour website. Have a confidential conversation at the toll free number. And then, if you would like to share your story with others, e-mail me. I am currently collecting information from workers whose employers refuse to comply with FLSA Section 207 (r). Until we know whether this new federal law can actually help women pump in the workplace, I will be writing the stories of women whose employers fail to comply with it.
According to the Chicago Sun-Times, Jennifer and Scott Spiegel are suing the hospital in which Ms. Spiegel gave birth because she was accidentally brought the wrong baby to breastfeed. I haven't found a copy of the legal Complaint seeking damages in excess of $30,000 for the couple, but in every interview with the Spiegels I can find there is no allegation that their baby was harmed in any way.
Switching babies is a serious matter. If babies are not properly identified, they can be given the wrong medication or sent home with the wrong family (lest we forget Kimberly Mays). All the more reason for babies to be born at home whenever possible and to room-in with their mothers when they are born in hospitals. And I believe that Jennifer Spiegel
If someone brought me the wrong baby, I would wonder whether my baby was with someone else. However it appears that baby Logan Spiegel was not harmed in this mix-up. Jennifer Spiegel was brought a baby other than her own son, breastfed him, the error was discovered, and Logan Spiegel (who was never nursed by anyone other than his own mother) spent the rest of the stay in his mother's room.
Let's examine that sentence for a moment. If we remove the part about her passing disease to the baby, would we still be talking about even a "slim chance"? Isn't the "slim chance" of disease transfer from her to the baby and not from the baby to her? And she is the one suing for damages?
But wait for it. The lawsuit needs to state the damage.
I'm trusting the Chicago Sun-Times for the phrasing. I really hope the Complaint doesn't really refer to breastfeeding as something one "signs up for."
What does seem clear from what is publicly available now is that this is a lawsuit about being damaged by nursing another woman's baby. And I find that offensive and implausible.
There was a mistake made here. One that had the potential to be quite harmful but in fact harmed no one. If there is an Illinois lawyer reading this, I would like to know what the state regulatory scheme does to hospitals that make such potentially harmful mistakes. But was Jennifer Spiegel damaged by having breastfed someone else's child? Or was her husband Scott, who appears to be both plaintiff and plaintiff's lawyer in this case (heads-up on that folks, when we lawyers represent ourselves it is usually because we can't find another lawyer willing to do it)?
I'll be watching this one. I'm afraid this will be a sad display of greed and the mischaracterization of breastfeeding another woman's child as traumatic.
For some months now I have been hearing about a proposed bill heading to the Taiwan Parliament that would impose a large fine (30,000 Taiwan dollars, about 940 US dollars) on "anyone attempting to prevent breastfeeding in public." Breastfeeding advocates the world over have heralded this bill as a model for laws elsewhere. However, I have been unable to find a copy of the proposed Taiwanese law. Before I support penalties, I want to know what conduct is being outlawed. Is the Taiwan bill going to impose this fine on owners and employees of public accommodations or will anyone be subject to it? What constitutes "preventing" breastfeeding? Should a store owner who harasses a breastfeeding customer in any way be fined? In my view, absolutely. Public accommodations enjoy certain benefits from the state and are regulated so that they can be truly public. Should a passerby in the park who makes a rude remark be fined? In my view, no. Regulating speech is dangerous business. If I limit your ability to say things with which I disagree, you may limit my ability to say things with which you disagree. Down that road, I don't get to say much.
But this post isn't really about what conduct should be fined and what conduct should be endured. When I find out what the Taiwan law actually says, then I'll see if it is appropriate to go on about free speech and the need to suffer fools in order to protect our own rights. This post is about what I found in my search for the text of the Taiwan bill.
Back in 2004 the Scottish Parliament was debating the ultimately successful passage of a bill imposing a large fine on stopping a woman from breastfeeding a child under age two in licensed premises (what would be called "public accommodations" in the U.S.). Now this is my kind of law. And this was also my kind of debate. A representative of the National Childbirth Trust said:
We therefore welcome this landmark legislation, which will establish a mothers' right to breastfeed her baby whenever and wherever they are together and convey the message that breastfeeding is a positive choice to be supported by society rather than discouraged.
I admit, the little hairs on the back of my neck go up every time I see breastfeeding described as a choice. After giving birth, one can choose not to breastfeed but lactating happens when you give birth. But otherwise that statement is right on: mothers must be able to breastfeed their babies wherever they are. However, there was a statement in the Scottish Parliament that day I find more interesting and certainly more memorable. Then-Member of the Scottish Parliament Carolyn Leckie said the following; suitable for framing, T-shirt or refrigerator magnet:
All right, some U.K. friend is going to have to tell me what "advertising hoardings" are but Leckie makes a great point with a suitable amount of outrage. It isn't breasts people object to – just breasts with children attached to them.
Back in July of 2007, I gave a session on Breastfeeding and the Law at the La Leche League International Conference in Chicago. Good session, if I do say so myself, which you can buy on CD here. [Disclaimer: I don't make a cent if you buy it.] While at the Conference, I also did a podcast which has just become available for free here.
So why listen to me talking about the state of breastfeeding law over two years ago? Well, sadly, while there have been some new breastfeeding laws passed – both good and bad – breastfeeding law, and the public attitude toward breastfeeding rights in general, really haven't changed much.
Word of warning, the podcast is almost fifty minutes long so grab some knitting or a hungry baby or something else to do while you listen. I think there some amusing things to learn about my parenting life (how many times do I use the word "clueless" to describe myself as a new parent?) and the role La Leche League has played in it (and how I took my job as Group librarian entirely too seriously). Also I talk about the history of breastfeeding law, current laws and attitudes, and my experience working with the Ronald McDonald House moms. The Ronald McDonald House incident had happened recently and, if anyone is unclear about this, neither Ronald McDonald House of Houston nor Ronald McDonald House Charities has ever dealt appropriately with the moms. So you are going to hear a good bit of justified Jake outrage.
Hope you enjoy it and would love to hear impressions. If nothing else, you have to love a podcast that ends because the interviewer's baby needs a diaper change.
-Woman calls police for help because she is being beaten by her boyfriend as she tries to leave her apartment.
-Police arrive, describe her as "extremely intoxicated" but do not question her ability to care for her six week old daughter until she "began breastfeeding her infant in front of us."
-Woman loses custody of her child for six months, is then sentenced to a minimum of another six months away from her child, leaves the courthouse after sentencing and slashes someone's tires as well as, possibly, her own wrists.
Anvarinia’s demeanor, a strong smell of alcohol on her and the alcohol containers throughout the apartment suggested to him that she was intoxicated.
and
he saw Anvarinia shake the baby girl, hold her without supporting her head and, at one point, hold her upside down by one leg
However, none of this is in the original incident report by the same officer. If a six week old infant were being held upside down by one leg and shaken, would you wait until the mother put the child to the breast to arrest her for child neglect? Would the breastfeeding and nothing else be in the arrest report?
If we are to assume that Anvarinia indeed has an alcohol problem, it was some solace that, though she lost custody of her daughter for at least a year and her abuser walked away with no charges, her sentence included substance abuse treatment. Well, not anymore. In today's report:
Stacey Anvarinia, 26, had been allowed to spend at least part of her sentence at a substance abuse treatment facility, but Judge Sonja Clapp of the State District Court rescinded that option today.
The judge has sent a battered mother who allegedly has an alcohol problem straight to jail and, as punishment for allegedly getting drunk again, won't let her go to alcohol treatment.
Mothers can learn a lot of very disturbing lessons from the Anvarinia case. If you are being beaten while trying to escape an abusive boyfriend, calling the police may result in losing custody of your child. And your abuser won't be charged with any crime. If you plead guilty to charges for which the state appears to have very little evidence in exchange for a lighter sentence and substance abuse treatment, you better not abuse substances before you get treatment because the judge will change your sentence to deny you the treatment you need. So the punishment for being abused is losing your child and the punishment for being an alcoholic is not getting alcohol treatment. Please, someone tell me who this protects?
As promised, here is an update on Stacey Anvarinia, the North Dakota women who pled guilty to child neglect for allegedly breastfeeding her six-week-old daughter while drunk. For more on what appears to be a startling lack of evidence, see my post here. My suspicion that Anvarinia pled guilty as part of a deal for a lighter sentence and return of her baby seems to have been spot on.
According to the Grand Forks Herald, rather than the maximum sentence of five years imprisonment, Anvarinia was sentenced today to six months which she can serve in a substance abuse treatment facility. No news story published before today has mentioned whether Anvarinia had custody of her infant daughter since the arrest. In my previous blog post, I wondered whether she might have waived her right to trial in order to get her child returned to her. The Grand Forks Herald reports that at Anvarinia's sentencing she said:
"I’m very sorry for what I did, and I know it was wrong,” 26-year-old Stacey Anvarinia told the judge. “And I would like to continue working toward getting my daughter back.
So Anvarinia does not currently have her daughter and does not appear to know when she will regain custody of her. She was arrested in this case on February 13, 2009. As of today's sentencing then, she has been without her daughter for nearly six months and can now, it appears, look forward to at least another six months without her.
The brief news released today makes no mention of Delbert Harrison, the man Anvarinia says was beating her when she called police for help. As of last week, he had not been arrested or charged. Anvarinia's sentence for calling for help is a year without custody of her daughter, six months of which will be in some sort of detention.
Even if Anvarinia was intoxicated when police arrived – something for which there is apparently no evidence other then the police shock at her breastfeeding in their presence – is the loss of custody for a year (or more) and detention for six months an appropriate sentence? If you were a breastfeeding mother in need of help, how willing would you be to call the police? You might find yourself nursing an infant one minute, and regaining custody of a toddler a year later.
Clapp sentenced Anvarinia to 18 months in jail with all but six months suspended and said Anvarinia could get credit for chemical dependency treatment.
So Anvarinia's sentence is more severe than I reported above. Many thanks to Cate Nelson for the heads-up on this.
When I read the Associated Press story this past June about the guilty plea for "child abuse or neglect" by a North Dakota woman alleged to have breastfed her child while intoxicated, a few things leapt off the screen at me. I wondered why this mother had pled guilty. As a lawyer I know that people don't plead guilty because they are guilty. Guilty pleas are generally the result of a deal. The accused is waiving the right to a trial in exchange for an agreed upon sentence or in order to be charged with a lesser crime. Sometimes they plead guilty because they are frightened or inadequately represented or fear losing or being separated from their children. This woman pled guilty to the original charge so the "deal for a lesser charge" theory can be eliminated. Why then?
Also of significance to me was that the police were called to the mother's home in response to a "domestic disturbance" call. Often "domestic disturbance" means that the call was in response to domestic violence. Had the original call been made so police would protect the mother?
[s]he was assaulted by her boyfriend identified as Harrison, Delbert.
She stated he kneed her in the chin and struck her face when she attempted to leave.
Officers observed red and swelling area on the bridge of her nose, a small scratch to her left cheek, and a red swollen area on her chin.
So Anvarinia had called the police because she had been the victim of a crime. She called for help.
Also according to the police reports, "she was extremely intoxicated." How did the police know this? Neither the police reports nor subsequent police comments to the press give any indication. No report says police smelled alcohol, saw alcohol, heard slurred speech, and the police did not administer a blood-alcohol test. What behavior did Anvarinia engage in that led to her arrest for child abuse or neglect? She "began breast feeding in front of us." Paramedics were called but they transported the baby to the hospital. Battered Stacey Anvarinia was taken to jail.
Reports of this story led to much debate about the safety of drinking alcohol while breastfeeding. That is certainly an important issue. However, for Stacey Anvarinia, I wonder whether we have any reason to believe she was intoxicated at all. As this case got more press, the Grand Forks police have gotten a little defensive on this point:
Well, what truly is the totality of the circumstances? In defense of itself, the police cite her breastfeeding as … what? Evidence of her intoxication? Might having been recently beaten cause one to seem disoriented? Check the time she is alleged to have committed the "crime." 3:57 a.m. Had she slept at all that night? She had injuries to her face. Did she have a head injury? Despite protests that breastfeeding isn't the issue, the police still only point to her breastfeeding in front of them as being "unusual" in her behavior.
What then happened to Delbert Harrison, the man identified as having beaten Stacey Anvarinia? He was neither arrested nor charged with any crime. Why not?
According to a 2005 study in the American Journal of Public Health, homicide is the third leading cause of injury-related death for women who are pregnant or who have given birth in the previous year. A 2002 study in The British Medical Journal concluded that a woman's risk of domestic violence doubles during pregnancy and the year after birth. The U.S. Centers for Disease Control reported in 2005 that due to poor reporting, we really don't have accurate figures on how high the rate of homicide is for women during pregnancy and the post-partum period because few states report whether a homicide victim was pregnant or had recently given birth. Even given the admitted under-reporting, homicide was found to be the second leading cause of injury-related maternal death. Of those deaths, 57% were caused by gunfire.
Stacey Anvarinia could have been a homicide statistic. According to the police report, she was beaten while trying to leave. She reached out to the police to save her. Instead, they arrested her.
According to news reports, Anvarinia will be sentenced this Friday. Let's see how much jail time you get for breastfeeding in front of the police you ask to save your life.
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