Accommodating Breastfeeding Mothers
Before my guest visit at Concurring Opinions ends, I want to comment on a case that received media attention in September and October: Currier v. National Board of Medical Examiners. The Massachusetts appeals court granted a preliminary injunction ordering the National Board of Medical Examiners (NBME) to allow Sophie Currier additional break time so that she could pump breast milk during a medical licensing exam. The Supreme Judicial Court denied the NBME’s request for further judicial review. This was undoubtedly a victory for Currier, but what about for other breastfeeding mothers?
Over at slate.com, Dahlia Lithwick asked why more female columnists did not comment on Currier. She speculated that women are so beaten down by the Mommy Wars that they chose to remind quiet; or that some women silently wondered why a mother of two small children would start a medical residency; or that many women believed that because they breastfed and worked without accommodation, Currier should as well. I’ve found it difficult to discuss Currier, but not for any of the reasons that Lithwick suggested. I usually applaud policies and legal results that help women balance families and careers . But here I’m concerned that Currier’s legal victory will ultimately undermine the goal of widespread accommodation of breastfeeding employees.
Here are the facts, which lacked clarity in many media reports. Currier was scheduled to take a 370-question multiple choice test. The test is taken on a computer and questions are distributed in eight one-hour blocks; once the block ends, a student cannot revisit that portion of the test. Students have forty-five minutes of break time; they can allocate it between the blocks in any manner they choose. No food or drink is allowed in the testing room. Because Currier has learning disabilities, the NBME granted her double time and a separate test-taking room. Currier’s testing would thus take place over two days, with forty-five minutes of break time each day.
Currier, whose daughter was born on May 1, 2007, asked for an additional sixty minutes of break time each day for the purpose of pumping millk. The NBME refused this request and offered the following accommodations:
* permission to express milk in a private room at the testing center during the allotted break time;
* permission to bring food and drink into the testing room;
* permission to pump milk while in her separate testing room;
* the option to leave the test center to breastfeed during the allotted time.
The first two accommodations are worthwhile because they go to the heart of Currier’s problem; that is, they help ensure that Currier will have adequate time to pump, eat, and go to the bathroom during the course of the day. The second two are notable only for their utter worthlessness. Leaving the testing center would only increase Currier’s time crunch. Her separate testing room is video-monitored and has at least three glass walls, so enough said about the suggestion that she pump there! The NBME’s other proposed solution—that Currier delay testing until she no longer needs to pump milk—suggests that the licensing board is several decades behind the times.
But why weren’t the first two accommodations good enough? At the risk of sounding like Donald Rumsfield standing at his desk, what’s the big deal?
Currier said that she should pump at least once every three hours in order to avoid reduced milk supply, engorgement, blocked milk ducts, breast infection, and other horribles. Her expert’s affidavit stated that each pumping session would take about thirty minutes: five minutes to assemble the pump, 10 – 15 minutes to express milk, and five to 10 minutes to disassemble and clean the pump and to store the milk. On this record, Currier does need more than 45 minutes of break time over the course of an eight hour test.
But of course this record strains credulity for anyone familiar with pumping milk. When time matters, women preassemble most of the pump in advance and bring extra preassembled parts if they will pump more than once. “Storing” milk consists of placing it next to an ice pack already in the pump. All the mechanics take just a few minutes.
The number that really matters is how long it takes to express milk. But at 10 to 15 minutes (the numbers provided by Currier’s expert), she should have time to pump twice and still attend to other physiological needs, particularly since she can eat and drink in the testing room. And if she did have to pump less than the ideal, the most likely worst case scenario is that Currier would be a bit uncomfortable by the end of the day. Indeed, Currier’s victory is partially the fault of the NBME’s lawyers, as the appeals court specifically notes that on the state of the record, it was undisputed that Currier “would suffer physical pain from breast engorgement if she is not permitted additional time.”
What concerns me is that this case sends the message that accommodating breastfeeding mothers is difficult. It’s not. All women need is privacy to pump and the break time that many employees are already afforded during the course of an average day. But employers will understandably protest policies requiring accommodation if they believe that breastfeeding employees require one additional hour on top of what they usually receive.
While Lithwick is right that many commentators remained silent about this case, my own (admittedly unscientific) survey showed quite a bit of web chatter. Most comments were decidedly unsympathetic toward Currier. Indeed, I’ve declined to link to any posting beside Lithwick’s because some of the comments are so impolite. Undoubtedly some of the chatter has been influenced by the facts that Currier was already receiving accommodation for learning disabilities, and that she had failed the exam once before.
As academics have painstakingly documented, there is much that policymakers could do to help women balance families and careers. My fear is that Currier will end up as a poster child for those who oppose these efforts.