In May of this year I welcomed my first child into this world. It was beautiful and glorious and the most amazing moment of my life. Being a new mom is full of firsts: the first time they smile, the first time they laugh, the first time someone tells you to cover yourself while trying to feed your child in public.

The Affordable Care Act of 2010 (also known as Obamacare) established federal rules governing a woman’s right to pump or breastfeed while at work. Unfortunately there is no federal legislation that specifically protects a woman’s right to feed her child in public. On a state level, it is legal to breastfeed in a place of public accommodation in all 50 states.

So what are the repercussions for businesses or other entities that infringe upon that right? Well, that depends.

Arguments can and have been made that breastfeeding is protected under Title VII of the 1964 Civil Rights Act and the Pregnancy Discrimination Act, but those rules deal primarily with employment discrimination rather than discrimination in a place of public accommodation and not all of the cases linking breastfeeding and the PDA have been successful. More on this later.

This leaves us with state laws. For most states the law is fairly simple, like Ohio’s 3781.55:

A mother is entitled to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted.

When we examine the “penalties” section of this chapter, found in ORC 3781.99, it states:

 (A) Whoever violates division (E) of section 3781.111 of the Revised Code shall be issued a warning for a first offense. On each subsequent offense, the person shall be fined twenty-five dollars for each parking location that is not properly marked or whose markings are not properly maintained.

(B) Whoever violates this chapter or any rule adopted or order issued pursuant to it that relates to the construction, alteration, or repair of any building, and the violation is not detrimental to the health, safety, or welfare of any person shall be fined not more than one hundred dollars.

(C) Whoever violates this chapter or any rule adopted or order issued pursuant to it that relates to the construction, alteration, or repair of any building, and the violation is detrimental to the health, safety, or welfare of any person, is guilty of a minor misdemeanor.

There has yet to be any case law establishing a penalty for violating a woman's right to breastfeed in public.

If we think about discrimination, ORC 4112.02(G) states:

It shall be an unlawful discriminatory practice:

(G) For any proprietor or any employee, keeper, or manager of a place of public accommodation to deny to any person, except for reasons applicable alike to all persons regardless of race, color, religion, sex, military status, national origin, disability, age, or ancestry, the full enjoyment of the accommodations, advantages, facilities, or privileges of the place of public accommodation.

 

ORC 4112.99 lists the ramifications for violations:

Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief.

 

Seems pretty straightforward, right? Well…

In 2000, before the passage of 3781.755 (and many say the impetus for that statute), in Derungs  vWalMart Stores Inc(S.D.Ohio 2000), 141F.Supp.2d, 884  the courts decided that prohibiting breastfeeding in public did not constitute discrimination in public accommodations. It states:

“Nevertheless, it insists that a prohibition against breast-feeding constitutes neither sex nor age discrimination. In support, Wal-Mart reasons that such a prohibition does not draw a distinction between men and women, or between infants and older individuals. Rather, such a rule draws a distinction between women who breast-feed and women who do not, and between infants who are breast-fed and infants who are not. As a result, Wal-Mart argues that the only possible discrimination in the present case is not sex or age discrimination, but “breast-feeding discrimination,” which is not prohibited by the Ohio Revised Code.”

This is considered the “sex-plus” rule of discrimination.

“In a sex-plus or gender-plus case ... [a female] plaintiff must ... prove that the subclass of women was unfavorably treated as compared to the corresponding subclass of men.’ “ Id., 374 F.3d at 432 (quoting Derungs, 141 F.Supp.2d at 891) (emphasis in original). “ ‘Absent such a [corresponding] subclass [of men], a plaintiff cannot establish sex discrimination.’" (Fox v. Brown Memorial Home, Inc. United States District Court, S.D. Ohio, Eastern Division.August 10, 2010 Not Reported in F.Supp.2d2010 WL 3167849)

The crux of the argument being that there are women who do not breastfeed and babies who are not breast-fed, therefore you can’t say prohibiting breastfeeding in public is age or sex discrimination. For an action to fall under the rule of age or sex discrimination, a clear line must be drawn between two sexes or two ages. Since there are women and babies in both groups, those rules don’t apply.

L. Camille Hebert posits in THE CAUSAL RELATIONSHIP OF SEX, PREGNANCY, LACTATION, AND BREASTFEEDING AND THE MEANING OF “BECAUSE OF ... SEX” UNDER TITLE VII (12 Geo. J. Gender & L. 119, Georgetown Journal of Gender and the Law, Summer, 2011) that this case was overturned legislatively by the 2005 passage of ORC 3781.55 and subsequent cases have declined to follow, but there has yet to be any published case law in Ohio that establishes the act of telling a woman to cover up or leave the premises in order to breastfeed is gender discrimination under 4112.02(G). Corral v. Bryant and Stratton College, Inc. 2013 WL 1773821, *1, N.D.Ohio, ( NO. 1:13CV0066) made the connection, but the case was remanded due to fraudulent joinder before the issue could be argued, so no precedent exists yet.

 

That’s Ohio law, but I live in Kentucky. What are my rights there?

KRS 211.755 states:

 

(1) Notwithstanding any other provision of the law, a mother may breast-feed her baby or express breast milk in any location, public or private, where the mother is

otherwise authorized to be. Breast-feeding a child or expressing breast milk as part

of breast-feeding shall not be considered an act of public indecency and shall not be

considered indecent exposure, sexual conduct, lewd touching, or obscenity.

 

(2) A municipality may not enact an ordinance that prohibits or restricts a mother

breast-feeding a child or expressing breast milk in a public or private location where

the mother and child are otherwise authorized to be. In a municipal ordinance,

indecent exposure, sexual conduct, lewd touching, obscenity, and similar terms do

not include the act of a mother breast-feeding a child in a public or private location

where the mother and child are otherwise authorized to be.

 

(3) No person shall interfere with a mother breast-feeding her child in any location,

public or private, where the mother is otherwise authorized to be.

 

So far the court has not been asked to define exactly what “interfere” means in this context.

 

KRS 211.990 lays out the penalties for violating this chapter as follows:

(2) Except as otherwise provided by law, anyone who fails to comply with the
provisions of the rules and regulations adopted pursuant to this chapter or who fails
to comply with an order of the cabinet issued pursuant thereto shall be guilty of a
violation. Each day of such violation or noncompliance shall constitute a separate
offense.

Like Ohio, the discrimination laws for the state of Kentucky have yet to be linked to public breastfeeding in a case, so no precedent exists yet.

On a federal level, Kentucky’s case law isn’t as extensive as Ohio’s, but Wallace v. Pyro Min. Co. (United States Court of Appeals, Sixth Circuit. December 19, 1991 951 F.2d 351) states:

“Wallace argues that the Preganancy Discrimination Act, which states that discrimination based on “pregnancy, childbirth, or related medical conditions” is discrimination based on sex under Title VII, applies to this situation. Wallace has failed to produce evidence supporting her contention that breastfeeding her child was a medical necessity. Thus, this Court does not need to reach the issue of the Pregancy Discrimination Act's applicability.” [emphasis added]

We see by these cases that precedent is not strong for either state. That might not be the case for long.

A water park in northern Kentucky recently made news for telling a mom she needed to either cover up while breastfeeding or leave. In response to the mother’s complaint, management apologized and indicated there had been a misunderstanding among their staff about the rules, but also had this to say: The only thing that we do ask, is that mothers are aware that we do have a lot of children, teenagers etc. in the area and that they cover up or find a spot under the patio. A private spot etc. so that it is not an uncomfortable situation for everyone."

Does this constitute interference? Black’s Law Dictionary defines interference as:

  1. The act of meddling in another's affairs. 2. An obstruction or hindrance.

The courts might soon get a chance to decide.

The history of public breastfeeding laws in both Ohio and Kentucky is still being written. We will be watching the courts closely in the coming years to see how they interpret the new laws in both states.

For more reading on Ohio breastfeeding laws, check out this article!