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ACCOMMODATING BREASTFEEDING MOTHERS, EMPLOYERS HAVE THE RIGHT TO A CLEAR RULE

In recent years, the literature supporting the importance of breastfeeding has grown. More and more mothers are breastfeeding their children for as long as possible. As this trend continues, employers are going to be asked more often to make accommodations for mothers who are returning to work but want to continue to breastfeed.
 
A woman who worked for the provincial government in British Columbia returned to work and began breastfeeding her child, which was apparently brought in by somebody else, on her lunch hours. This continued for four months and nobody seemed to have a problem.
 
The employer then began scheduling seminars at the lunch hour which the mother needed to attend. She took her child with her and breastfed during the seminar. That soon became a problem.
 
Although men usually take the rap, perhaps deservedly, for discrimination against women everywhere, in this case it was actually other women who complained. They did not think breastfeeding should take place in Amixed@ company. The mother was told that it was inappropriate for her to have her child at the workplace on a regular basis and that a formal policy on breastfeeding was on its way. Her supervisor told her that she should stop breastfeeding for a two-week period while things Acooled down@.
 
This mother filed a complaint with the British Columbia Human Rights Commission alleging discrimination on the basis of her gender - only women, of course, breastfeed. She was being forced to choose between attending seminars and breastfeeding a child, a choice imposed upon her solely because of her gender.
 
The British Columbia Human Rights Commission found that by forcing the mother into this choice, the employer had violated her right to be free from discrimination in her employment on the basis of her gender. It also found that telling her not to breastfeed for two weeks at work was discrimination.
 
Two human rights commissions in Canada have recommended that employers allow breaks as necessary for breastfeeding or expressing breast milk without the employee having to give up their normal meal breaks or work additional time to make up for those breaks. They recommend employers allow breastfeeding during meetings unless to do so would be unduly disruptive. Other suggestions such as providing a comfortable and private place for breastfeeding and providing flexible scheduling have been made.
 
Surprisingly, the Ontario Human Rights Commission has stated that in some circumstances an extended leave of absence may be an appropriate accommodation.
 

Remember, the Commission=s recommendations are not law, they simply reflect the opinions of the internal bureaucrats.  By making such a suggestion, the Commission is inviting women who are not allowed to stay off for pregnancy more than a year so they can continue breastfeeding to file a human rights complaint.  This is hardly fair to employers.  The Employment Standards Act says that the job has to be held for a year. Employers should not be put in the position of arbitrating which ones of those special cases where the breastfeeding continuation is so important they should extend that leave.
 
Employers have the right to have a clear rule that they can enforce with everybody. They should not be left with one branch of the provincial government contradicting the rules set down by another branch. The Commission=s other recommendations with respect to accommodating breastfeeding or expressing mothers are not unreasonable. Suggesting that an extended leave may be a required accommodation is.
 
As published in the Hamilton Spectator, June 22, 2004
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com