Action Marks First Legal Challenge to Enforce Colorado’s 2008 Workplace Nursing Mothers Act

DENVER – The American Civil Liberties Union of Colorado and the ACLU Women’s Rights Project took action today against a Jefferson County public charter school that fired a teacher for asserting her right to pump breast milk while at work, in violation of state and federal anti-discrimination laws. The ACLU filed a state notice of claim against the school as well as a federal complaint of discrimination with the Equal Employment Opportunity Commission, signaling the ACLU’s intent to file a formal lawsuit.

Heather Burgbacher had been a highly valued teacher at the Rocky Mountain Academy of Evergreen (RMAE) for the past five years. She received consistently positive workplace evaluations, but the school refused to renew her contract this year because she stood up for her right to express milk for her newborn baby at work. That right is explicitly guaranteed by the Workplace Accommodations for Nursing Mothers Act, passed by the Colorado state legislature in 2008.

“All too often breastfeeding mothers experience harassment and discrimination when trying to pump breast milk during the work day,” said ACLU of Colorado Staff Attorney Rebecca T. Wallace. “But Colorado law explicitly states that no mother should have to choose between breastfeeding her baby and keeping her job. Yet that’s precisely the position in which RMAE placed Ms. Burgbacher.”

The Colorado statute unequivocally recognizes the societal and health benefits of breastfeeding and requires that employers make reasonable accommodations to allow new mothers to express milk at work. The ACLU’s two legal filings invoke the protections of the 2008 statute, as well as federal laws against sex discrimination, pregnancy discrimination and retaliation for protesting such violations.

In late 2010, Burgbacher arranged for her students to do supervised deskwork for the very brief periods during which she needed to pump breast milk—which amounted to only 20 minutes, three times each week. Even though Burgbacher found coverage for her classes during these brief periods, her supervisors resisted this accommodation until forced to accept it through mediation. Shortly thereafter, in February 2011, Burgbacher was informed that her contract would not be renewed. Her supervisor made clear that the termination was not due to Burgbacher’s job performance, but only because of the “conflict” over her pumping schedule.

“Colorado’s state statute removes any doubt that working mothers have a right to pump breast milk at work,” said attorney Mari Newman, of Killmer, Lane & Newman LLP. “Discrimination against breastfeeding mothers in the workplace is not only illegal, it’s also bad for Colorado families and businesses because it forces women to choose between breastfeeding their babies or returning to the workplace after giving birth.”

Women who breast feed must pump milk regularly throughout the day to ensure that they will keep lactating. During discussions about her pumping schedule, one of Burgbacher’s supervisors informed her that RMAE would not accommodate her need to pump and suggested that she feed her baby formula instead.

“In order to achieve full equality for women, our workplace policies must take into account that breastfeeding is a reality in the lives of many women workers, and make necessary accommodations,” said Galen Sherwin, staff attorney with the ACLU Women’s Rights Project. “Employers should certainly have no say in a woman’s personal decision whether to breast feed her baby.”

Burgbacher, the ACLU client, said: “I was only trying to do what all medical experts agree is best for our baby. As a result I was bullied and had my rights violated. I just want to ensure that no other nursing mother – especially in Colorado where we have a law meant specifically to protect us – has to go through what I went through.”

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