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.
Breastfeeding discrimination can arise where:
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:
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.
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.
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.
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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.
In the case of Kaplan v State of Victoria (No 8) [2023] FCA 1092, five Jewish former students at Melbourne’s Brighton Secondary College (College) received compensation of $435,000 after the Federal Court found they had been subjected to anti-Semitic bullying and harassment, and that the State of Victoria and the Principal of the College breached the Racial Discrimination Act 1975 (Cth) (Act) by failing to properly address anti-Semitism at the College. This case highlights the significant discrimination and child safety implications of a school’s failure to proactively address discriminatory bullying and harassment against its students on an individual and systemic level.
The applicants, five former students from the College, filed a claim against the State of Victoria, the Principal of the College, and two teachers from the College. The claim alleged:
In summary, the applicants alleged that:
Finally, the applicants alleged that the Principal contravened the anti-vilification provisions of the Act in respect of at least one speech he gave to a full school assembly, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students and were offensive more generally to Jewish people.
Each of the five applicants left the school as a result of the above.
The Court upheld the applicants allegations in part, and found that State of Victoria was vicariously liable for the Principal’s failure to adequately respond to anti-Semitic bullying and harassment by students.
The applicants succeeded on some of their claims under section 9(1) of the Act and negligence claims. Specifically, the Court found that:
The Court accepted the applicants’ claim that the Principal failed to address anti-Semitic bullying and harassment in a systemic and proactive way using recognised and established approaches in Australian secondary schools and approaches that were used at the College for other vulnerable students.
The Court found that the Principal contravened s 9 of the Act by failing to take reasonable and appropriate steps to discourage swastika graffiti and the anti-Semitic bullying and harassment of students. Appropriate and reasonable steps could have included taking disciplinary action against students who engaged in bullying and harassment, and taking systemic approaches to address the issue through school-wide campaigns. The Court found that at a leadership and systemic level the Principal took a different, and less favourable, approach to anti-Semitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups. As a result, this different and less favourable approach to anti-Semitism was also adopted by College staff.
The Court observed an inexplicable and unusual tolerance for anti-Semitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address anti-Semitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.
In relation to the claims made in negligence, the Court upheld the negligence claims made by four of the five applicants.
Damages and compensation orders were made against the State totalling approximately $435,000.
In its orders, the Court also provided a declaration to be made outlining the above findings of discrimination. The Court also prescribed some steps to be taken between the parties to negotiate a form of apology from the State of Victoria that is compatible with the Court’s reasons.
Our safeguarding team has expertise in both child safety and discrimination matters. We are well placed to assist with incidents raising either or both of these issues and can provide peace of mind in navigating any allegations or investigations that may arise.