Failing to provide a private place to express breastmilk in the workplace – when is it discriminatory?

Having a space to express breastmilk in the workplace can be a critical part of a breastfeeding parents’ transition back to work after parental leave.

Fortunately, there are laws in place to protect breastfeeding parents who need to express breastmilk in the workplace. The failure of an employer to provide a private, clean and appropriate space for expressing breastmilk can amount to unlawful discrimination. It may also be unlawful discrimination to have a rule that workers cannot take short breaks during the day, as this may disadvantage breastfeeding women who need to take breaks to express breastmilk. An employer may not dismiss an employee who breastfeeds or expresses breastmilk because of assumed health and safety risks in the workplace.

What is breastfeeding discrimination?

Breastfeeding discrimination can arise where:

  • a person is treated unfairly because of their need to breastfeed or express breastmilk (direct discrimination); or
  • imposes a requirement, condition or practice that has the effect of disadvantaging women who breastfeed, and it is not reasonable (indirect discrimination)

A recent case involving breastfeeding discrimination

In one of the first reported anti-discrimination cases involving breastfeeding parents, the ACT Civil and Administrative Tribunal (Tribunal) recently found that a KFC franchisee indirectly discriminated against a worker by failing to provide an adequate solution for one of its workers to express breastmilk.

The Respondent in this case was a large private KFC franchise owner in Australia. The Applicant was a woman who started working for the Respondent when she was 14 years old in 2015 and worked her way up to the position of store manager. She gave birth to her daughter in June 2021 and was excited to return to work in November 2021.

The Applicant had a lengthy and, at times difficult, negotiation process with the Respondent’s management about a suitable return to work arrangement to accommodate her need to express breastmilk at work.

In November 2021, the Respondent allowed the Applicant to use a fridge to store her breastmilk and use the wash sink, but otherwise:

  • refused the Applicant’s request for a private room and comfortable chair, as they considered it impractical and too costly;
  • refused the Applicant’s request to leave the store to express breastmilk at a nearby mall with a parent room, as she was sometimes the only manager on site and the Respondent couldn’t guarantee there would be another manager certified in OH&S available during her shifts; and
  • suggested the Applicant transition to becoming a casual worker, which was a demotion.

The Applicant then lodged a complaint with the ACT Human Rights Commission.

Eventually, a flexible work arrangement was approved, which included a pop-up tent and foldout chair in the storeroom. However, after the Applicant returned to work, the Applicant found this solution to be unsuitable. Due to the thin walls, the sounds of expressing milk were audible to staff and as there was no door, any staff member could walk in at any time.

The Applicant instead proposed to take unpaid meal breaks during her shift to express breastmilk, but this request was denied. From time-to-time, the Applicant left the store to express milk at the parent room in the nearby mall, but as there was frequently no other manager on site, she had to express at a much later time which caused her physical pain and discomfort.

The Applicant claimed that she suffered significant mental harm and a reduced capacity to work because of the Respondent’s failure to accommodate an arrangement which allowed her to express breastmilk at work.

What did the Tribunal decide?

The Tribunal found the Respondent indirectly discriminated against the Applicant by imposing a condition requiring managers to remain on site unless another manager was available on site who is certified in OH&S. This condition disadvantaged workers who breastfeed and express breastmilk (a protected attribute) and was not reasonable in the circumstances.

The Tribunal found that the Applicant had no choice but to accept a demotion or express before or after her shifts, disadvantaging her. The tent inside a doorless storeroom that was eventually provided was not even a ‘pass’ level solution, causing embarrassment and discomfort, which was also a form of disadvantage.

To address the Applicant’s request, the Respondent had multiple options to consider, such as adding a storeroom door, transferring the Applicant to a nearby store with a private, appropriate space to express breastmilk or providing junior workers with OH&S training so they could act in her place during the brief periods she left the store to express.

Lessons for employers and other duty holders

Employers and other duty holders are required to make suitable arrangements to support workers transitioning back to work after parental leave or to accommodate breastfeeding, and a failure to do so may amount to unlawful discrimination.

Requests from breastfeeding workers to cater for their need to express breastmilk are a normal part of the modern workplace, and so employers may wish to proactively consider how to accommodate such requests in a positive and appropriate manner. Other duty holders such as councils, sporting organisations, educational institutional and service providers should also take steps to reasonably accommodate people to breastfeed.

The Tribunal in this case was also critical of the process the Applicant had to go through to request her return to work arrangement. At only 20 years old, she was interviewed on her own by two senior men who questioned her in detail about the breastfeeding process and made her feel uncomfortable. The suggestion by a senior female manager that the Applicant express in the toilet was also criticised as not being a modern solution for breastfeeding parents at work. Employers may consider developing a clear policy and process for how to address such requests, to avoid an unnecessarily complicated or intimidating process.

How we can help

Moores assists clients by:

  • developing best practice policies and procedures on equal employment opportunity, flexible work arrangements, and reasonable adjustments and accommodations;
  • providing advice on how organisations can support their staff to transition back to work after parental leave;
  • advising on complex discrimination issues;
  • assisting organisations to prevent and respond to discrimination as far as possible; and
  • providing training about unlawful behaviours in the workplace.

If a discrimination issue arises, we can support you in your response and investigation.

Contact us

Please contact us for more detailed and tailored help.

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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.