Blog Post #8: Extra Time on the Bar Exam for Breastfeeding Mothers

By Jasmine Burns

Should new mothers taking the bar exam get extra time to complete the test to accommodate breastfeeding? In November 2014, Kristin Pagano asked for accommodations for the Illinois bar exam in February.[1] She requested twenty minute breaks every two hours for pumping and breastfeeding in addition to extra minutes to make up for the lost time.[2] The Illinois bar exam lasts two days and consists of two three-hour sessions with breaks in-between.[3] The Illinois Board of Admissions denied Pagano’s request because “nursing . . . is not a physical disability and therefore not covered under the Americans with Disabilities Act.”[4]Pagano submitted a reconsideration letter to the Board and argued that denying reasonable accommodations to breastfeeding mothers violates the Americans with Disabilities Act (“ADA”) in light of the Pregnancy Discrimination Act (“PDA”) and the Patient Protection and Affordable Care Act (“PPACA”); furthermore, Pagano argued that requiring breastfeeding mothers to exit the exam room to pump, without any additional testing time, is impractical, unfair, and discriminatory.[5]

The PDA of 1978 added pregnancy related discrimination to Title VII’s general prohibition on sex discrimination.[6] Discrimination because of, or on the basis of sex includes, “women affected by pregnancy, childbirth, or related medical conditions.”[7] Women affected by pregnancy, “shall be treated the same for all employment related purposes . . . as other persons not so affected but similar in their ability or inability to work.”[8] A plaintiff must establish a prima facie case of discrimination and demonstrate that another employee, who is similarly situated in his or her ability or inability to do work received more favorable benefits.[9]

Under the ADA of 1990, disability is a physical or mental impairment that “substantially limits a major life activity.”[10] The employer must provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.[11] Reasonable accommodations are any changes in the work environment to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits of employment.[12] The Equal Employment Opportunity Commission has guidelines on pregnancy discrimination place pregnancy related impairments under the ADA.[13]

Under the PPACA, generally employers have to provide reasonable break time for an employee pump milk to nurse her child one year after the child’s birth each time such employee needs to.[14] Also, “employers are required to provide a place, other than a bathroom, that is shielded from view, and free from intrusion from co-workers and the public.”[15]

It is contested amongst courts whether breastfeeding is considered a disability under the ADA. In Currier v. National Board of Medical Examiners, Currier requested additional break times to breastfeed her daughter and an additional sixty minutes of break time per test day to pump breast milk.[16] The court held that, “lactation is a sex-linked classification,” and extended protection to lactating mothers in the context of lengthy testing required for medical licensure.[17] In Young v. UPS , Young could not lift more than twenty pounds due to her pregnancy and claimed it a disability that required accommodations under the ADA; the Court held that Young was not disabled under ADA because the lifting limitation was temporary and did not significantly restrict her ability to perform major life.[18]

There is a similarity between the NMBE and the Bar Exam, which is a persuasive reason to extend the reasoning from Currier to a bar exam context. Both the Bar Exam and the NMBE extend over the course of days and provide applicants with limited time for breaks and rest periods.[19]Currier bridged a gap between protecting lactating women in a professional skills testing environment and in the workforce. The court noted that lactation is sex-linked, thus lactating mothers should receive protection during medical testing for licensure.[20] Likewise, Pagano would need the additional time to completely express milk and finish the exam.

Analyzing Pagano’s allegation under the ADA and the PDA, her claim falls short. Like Young, Pagano argues that not providing reasonable accommodations for breast milk pumping is considered unfair and discriminatory under the ADA. Yet the court in Young found that a limitation on lifting ability due to pregnancy did not constitute a disability as defined by the ADA. [21] Similarly, Pagano is limited by her need to breastfeed, but she is not rendered unable to complete the exam. Breastfeeding does not “ substantially limit a major life activity,” in the same way blindness or the inability to hear would; thus she may not be a protected class under the ADA.[22] Further, unless Pagano can show that her pregnancy is treated differently than other claims of disability, it is difficult to show that the policy implemented by the Illinois Bar is discriminatory against pregnant women.[23]

Despite federal guidelines making it illegal for employers to refuse reasonable accommodations to pregnant workers, breastfeeding has been depicted as a personal childbearing choice and treated as an option that women should reasonably be expected to forego for the sake of employment.[24] In EEOC v. Southwestern Electric Power Company, a medical physician testified “longer period of maternity leave gives the mother and child a better opportunity to become acquainted to the benefit of all.”[25] The court denied Plaintiff’s request for additional medical leave outside of four weeks because she presented no “medical reasons” for the absence.[26] The ADA applies to medical conditions that cause disability, but lactation is not a medical condition arising out of pregnancy.[27] The PDA does not necessarily protect claimants whose child-rearing choices interfere with the requirements of their jobs because pregnancy is not a protected class under Title VII because pregnancy is not a permanent condition.[28]

Alternatively, some states have favorable laws for breastfeeding women. In Florida’s 5th Circuit, a woman’s right to breastfeed is Constitutionally protected from state interferences.[29] It is a special communication between mother and child and was referred to “the most elemental form of parental care.”[30] It was compared to marriage as “intimate to the degree of being sacred.”[31] In Oregon, thirty-minute rest periods are provided to express milk every four-hour work period.[32]

Recently, proposed laws such as the Pregnant Workers Fairness Act, require employers to make the same kind of workplace accommodations for pregnant women as current law requires for people with disabilities .[33] Legislation like this treats pregnancy related disabilities like regular disabilities. In Ms. Pagano’s case, it will be difficult for her to prevail in the labor and employment context simply because it is not certain that taking the bar exam is in the employment context. Ms. Pagano would have to demonstrate a violation under Title VII, the ADA, or the PDA.

[1] Jacob Gershman, Illinois Bar Exam Board Denies Mother Extra Time to Breastfeed During Test, Wall St. J., available athttp://blogs.wsj.com/law/2014/11/19/illinois-bar-exam-board-denies-mother-extra-time-to-breastfeed-during-test/ (last visited Dec. 31, 2014).

[2] Id.

[3] Id.

[4] Kristin Pagano, Kristin Pagano Illinois Bar Breast Pump Reconsideration Request Letter, available athttp://www.scribd.com/doc/247138140/Kristin-Pagano-Illinois-Bar-Breast-Pump-Reconsideration-Request-Letter (last visited Dec. 31, 2014)

[5] Id.

[6] Young v. United Parcel Service, 707 F.3d 437, 447 (4th Cir. 2013).

[7] Id.

[8] Id. at 448.

[9] Id.

[10] Id. at 444.

[11] Equal Employment Opportunity Comm., Disability Discrimination,available at http://www.eeoc.gov/laws/types/disability.cfm (last visited Dec. 31, 2014).

[12] Id.

[13] Equal Employment Opportunity Comm., Pregnancy Discrimination,available at http://www.eeoc.gov/laws/types/pregnancy.cfm (last visited Dec. 31, 2014).

[14] United States Dep’t of Labor, Fact Sheet #73: Break Time for Nursing Mothers under the FLSA, available athttp://www.dol.gov/whd/regs/compliance/whdfs73.pdf (last visited Dec. 14, 2014).

[15] Id.

[16] Currier v. Nat’l Bd. of Med. Exam’r, 462 Mass. 1, 4 (Sup. Jud. Ct. 2012).

[17] Id. at 12.

[18] Young v. United Parcel Service, 707 F.3d 437, 440 (4th Cir. 2013).

[19] Id. at 6.

[20] Id. at 22.

[21] Id. at 449.

[22] Id.

[23] Equal Employment Opportunity Commission v. Southwestern Electric Power Co., 591 F. Supp. 1128, 1134 (W.D. Arkansas 1984).

[24] United States Breastfeeding Comm., Workplace Accommodations to Support and Protect Breastfeeding, available athttp://www.usbreastfeeding.org/Portals/0/Publications/Workplace-Background-2010-USBC.pdf (last visited Dec. 31, 2014).

[25] Id. at 1132.

[26] Id.

[27] United States Breastfeeding Comm., Workplace Accommodations to Support and Protect Breastfeeding, available athttp://www.usbreastfeeding.org/Portals/0/Publications/Workplace-Background-2010-USBC.pdf (last visited Dec. 31, 2014).

[28] Susan M. Omilian & Jean P. Kamp, 2 Sex-Based Employment Discrimination § 20.3, 3 (last updated Oct. 2014).

[29] United States Breastfeeding Comm., Workplace Accommodations to Support and Protect Breastfeeding, 14 available athttp://www.usbreastfeeding.org/Portals/0/Publications/Workplace-Background-2010-USBC.pdf (last visited Dec. 31, 2014).

[30] Id.

[31] Id.

[32] Id.

[33] Susan M. Omilian & Jean P. Kamp, 2 Sex-Based Employment Discrimination § 20.3, 2 (last updated Oct. 2014).