A comprehensive framework for accommodating nursing mothers in the workplace

Rutgers Law Review

Volumn 59, Issue 4, 2007, Pages 885-916

[No Author Info available]

Author keywords

[No Author keywords available]

Indexed keywords

EID: 41749102669     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (218)

1. Donald M. Fisk, American Labor in the 20th Century, COMPENSATION AND WORKING CONDITIONS, at 2 (Fall 2001), http://www.bls.gov/opub/cwc/print/ cm20030124ar02p1.htm (last visited Aug. 31, 2007).
2. WOMEN'S BUREAU, U.S. DEP'T OF LABOR, WOMEN IN THE LABOR FORCE IN 2005, http://www.dol.gov/wb/factsheets/Qf-laborforce-05.htm. This massive influx of women was not a steady progression, but rather an ebb and flow that resulted not only from the struggle for women's rights, but also coincided with the nation's need for more workers when men fought wars, especially during World War I and World War II. See generally NAOMI BAUMSLAG & DIA L. MICHELS, MILK, MONEY, AND MADNESS: THE CULTURE, AND POLITICS OF BREASTFEEDING 199 (Bergin & Garvey 1995).
3. The ratification of the Nineteenth Amendment was completed on August 18, 1920. See U.S. CONST, amend. XIX, § 2, History; Ancillary Laws and Directives: Explanatory Notes.
4. See 29 U.S.C. § 206(d) (2006).
5. See Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000e to 2000e-15 (2006).
6. The Equal Rights Amendment (ERA) was written and first introduced in 1923 by suffragist leader Alice Paul, founder of the National Woman's Party. The ERA: A Brief Introduction, http://www.equalrightsamendment.org/overview.htm (last visited July 8, 2007). The ERA has been reintroduced into every session of Congress since 1923. Id. In 1972, it was passed and submitted to the states to be ratified; however, after its seven-year deadline was extended, it ultimately fell three states shy of the thirty-eight necessary for ratification. Id. Current ERA supporters argue the Amendment is still necessary to solidify equality for women and prevent reversal of recent gains.
7. See Id. They note that the Supreme Court only applied the Equal Protection Clause of the Fourteenth Amendment to sex discrimination in Reed v. Reed, 404 U.S. 71, 76-77 (1971), and that sex discrimination is still examined under a lesser standard of scrutiny than racial discrimination. See Roberta W. Francis, Reconstituting the Equal Rights Amendment: Policy Implications for Sex Discrimination, 2001 AM. POL. SCI. ASS'N. ANN. CONF. 5-6, http://www.equalrightsamendment.org/APSA%202001.pdf. The ERA was reintroduced in 2007 as the Women's Equality Amendment; if ratified, it would become the twenty-eighth amendment to the United States Constitution. See Jim Abrams, Women's Equality Measure Faces Long Odds, ABC NEWS, Apr. 3, 2007, http://www.abcnews.go.com/Politics/wireStory?id=3005280;
8. Jim Abrams, Revival of Equal Rights Amendment Faces Long Odds, LOWELL SUN (Mass.), Apr. 8, 2007 (Opinions). The Amendment was jointly introduced in the Senate and the House of Representatives, and provides that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." S.J. Res. 10, 110th Cong. § 1 (2007);
9. H.R.J. Res. 40, 110th Cong. § 1 (2007), available at http://thomas.loc.gov/ (search Bill Number "sj res 10" or "hj res 40") (last visited Aug. 17, 2007).
10. The new heady freedom won by the early-twentieth-century suffragettes gave way to the 1950s homebound American housewife; followed by the 1970s women's liberation movement; the 1980s multitasking Superwoman; the 1990s backlash generation, spawning the mommy track and pink ghetto; and finally the exhausted twenty-first-century woman who combines motherhood and work. See generally BAUMSLAG & MICHELS, supranote 2, at 191-92;
11. SUSAN FALUDI, BACKLASH: THE UNDECLARED WAR AGAINST AMERICAN WOMEN xxiii (Three Rivers Press 2006) (1991) ("The meaning of the word 'feminist' has not really changed since it first appeared in a book review in the Athenaeum of April 27, 1895, describing a woman who 'has in her the capacity of fighting her way back to independence.'").
12. Society's notion of the idealized American woman was captured in "ladies magazines," which reflected the changing social times. See BETTY FRIEDAN, THE FEMININE MYSTIQUE 38-41 (Norton 2001) (1963). In the late 1930s, soon after women gained the right to vote, the embodiment of the typical magazine heroine was the bold "New Woman" - an independent career woman who pursued her individualistic desires. Id. Yet by the 1950s, the "New Woman" had stepped aside and was replaced by the demure housewife, who always put the needs of others first and pitied the lonely, struggling career woman. Id. at 43-47.
13. See, e.g., SYLVIA ANN HEWLITT, CREATING A LIFE: WHAT EVERY WOMAN NEEDS TO KNOW ABOUT HAVING A BABY AND A CAREER 90-91 (2003) (citing a 1995 study by Harvard economist Claudia Goldin, which "trace[d] the conflict between work and family all the way back to the early years of the twentieth century," and found that women have faced enormous difficulties combining family and career throughout the twentieth century).
14. With the advent of the Women's Liberation Movement, the notion of women's equality took hold, yet many feminists feared that acknowledgement of women's actual biological differences would impede their efforts to be treated equally. See JANE SMILEY, Feminism Meets the Free Market, in MOMMY WARS 202, 204 (Leslie Morgan Steiner ed., 2006) ("[W]ish[ing] American feminism had produced a society like Norway or Sweden, where child rearing and family life are considered the business of the entire country. . . . Where good prenatal care, breast-feeding, excellent day care . . . are considered the rights of all rather than the privilege of a few.").
15. See Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976).
16. See 42 U.S.C. § 2000e(k) (2006).
17. See UNICEF/WHO Baby Friendly Hospital Initiative in the United States (BFHI), http://www.babyfriendlyusa.org/eng/01.html (last visited July 8, 2007). The BFHI website states that: A decreased risk of diarrhea, respiratory and ear infections, and allergic skin disorders are among the many benefits of breastfeeding to infants in the industrialized world. In the United States, these benefits could translate into millions of dollars of savings to our health care system through decreased hospitalizations and pediatric clinic visits. For diarrhea alone, approximately 200,000 US children, most of whom are young infants, are hospitalized each year at a cost of more than half a billion dollars. Many of these cases of diarrhea could have been prevented with breastfeeding. In a study of the morbidity in an affluent US population, Dewey and colleagues found that the reduction in morbidity in breastfed babies was of sufficient magnitude to be of public significance. For example, the incidence of prolonged episodes of otitis media (ear infections) was 80% lower in breastfed as compared to non-breastfed infants. The cost savings to the health care system could be enormous if breastfeeding duration increased, given that ear infections alone cost billions of dollars a year. Id.
18. Recognizing the Benefits of Breastfeeding, and for Other Purposes, S. Res. 403, 109th Cong. (2006): Whereas studies have shown that children who were breastfed had a 20 percent lower risk of dying in the first year of life . . . [w]hereas throughout the United States, mothers have encountered legal and systematic challenges while trying to breastfeed in public and . . . when seeking out adequate places to express milk in the workplace .... Id.
19. See also New Mothers' Breastfeeding Promotion and Protection Act of 1998, H.R. 3531, 105th Cong. (1998). "The American Academy of Pediatrics recommends breastfeeding for at least the first 12 months of a child's life. The Academy also recommends that arrangements be made to provide expressed breastmilk if mother and child must separate." Id. § 2(3). A variety of electric, manually operated, and battery powered breast pumps are available on the market, which enable a woman to express her breast milk. See BAUMSLAG & MICHELS, supranote 2, at 54.
20. See Rona Cohen et al., Comparison of Maternal Absenteeism and Infant Illness Rates Among Breast-Feeding and Formula-Feeding Women in Two Corporations, AMER. J. HEALTH PROMOTION, Nov.-Dec. 1995, at 148, 152.
21. UCLA Study of CIGNA Corporate Lactation Program Proves that Helping Working Moms Breastfeed Is Good Business (June 15, 2000), http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=104&STORY=/www/story/ 06-15-2000/0001244067&EDATE= [hereinafter UCLA Study];
22. See also Deanna McCool, Some Companies Help Nursing Moms, S. BEND TRIB. (Ind.), Sept. 14, 2003, at B1.
23. See UCLA Study, supranote 16.
24. Id.
25. Id.
26. See Breastfeeding Promotion Act of 1998, H.R. 3531, 105th Cong. § 2 (1998). Breastfeeding promotion and support are an integral part of nutrition services provided by the Women, Infants, and Children (WIC) program, and has been shown to reduce costs. For example, in a recent cost-benefit study in the State of Colorado, it was found that exclusively breastfeeding a WIC infant saved $161 in the first 6 months of life when compared to formula-fed infants. A Medicaid savings of $112 per infant was realized by this group while pharmacy costs were approximately 50 percent lower. Id. § 9.
27. BAUMSLAG & MICHELS, supranote 2, at 6.
28. Id. at 189.
29. Id. at 147.
30. See Alan S. Ryan et al., Breastfeeding Continues to Increase Into the New Millennium, 110 PEDIATRICS 1103-09 (2002).
31. See BAUMSLAG & MICHELS, supranote 2, at 147-51. UNICEF lent legitimacy to the practice of feeding babies artificial milk when it distributed nearly two million pounds of free powdered milk in the early 1960s. Id. at 148.
32. Id. at 150. Despite the prevalence of human exposure to hazardous chemicals and the accumulation of chemical residues in human bodies, studies show that breastfeeding has a protective effect and, in April 2006, WHO "confirmed breastfeeding as optimal for child health . . . ." International Baby Food Action Network, Pro-REACH Groups Say: "Breast Is Still Best" (June 27, 2006), http://www.ibfan.org/site2005/Pages/article. php?art_id=431&iui=1.
33. See BAUMSLAG & MICHELS, supra note 2, at 157-66.
34. The International Code of Marketing of Breast-milk Substitutes was adopted in 1981 by the World Health Assembly (WHA), which is comprised of the ministers of health of world governments, along with their advisers, and eminent public health experts. International Baby Food Action Network, What is the International Code?, http://www.ibfan.org/site2005/Pages/article.php?art_id= 51&iui=1 (last visited July 15, 2007).
35. See International Code of Marketing of Breast-milk Substitutes art. 1, W.H.A. Res. 34.22 (May 21, 1981), available at http://www.who.int/nutrition/ publications/ code_english.pdf (last visited Aug. 17, 2007). The International Code seeks to promote the "superiority" of breast milk over infant formula. Id. art. 4.2(1). "Manufacturers and distributors [of infant formula] should not distribute to pregnant women or mothers of infants and young children any gifts of articles or utensils which may promote the use of breastmilk substitutes or bottle feeding." Id. art. 5.4.
36. The United States initially refused to adopt the International Code, but President Clinton eventually endorsed it in May 1994, when the United States reversed its "isolated opposition" at the WHA meeting in Geneva. BAUMSLAG & MlCHELS, supranote 2, at 169-70.
37. See International Baby Food Action Network, supranote 28. Free supplies of artificial milk continue to undermine breastfeeding and "[n]ot a single infant formula company today can demonstrate full compliance with the [International] Code."
38. See BAUMSLAG & MlCHELS, supranote 2, at 169.
39. See infra notes 33, 36. (5) Breastmilk is the first line of immunization defense and enhances the effectiveness of vaccines given to infants. (6) Research studies show that children who are not breastfed have higher rates of mortality, meningitis, some types of cancers, asthma and other respiratory illnesses, bacterial and viral infections, diarrhoeal diseases, ear infections, allergies, and obesity. New Mothers' Breastfeeding Promotion Act of 1998, H.R. 3531, 105th Cong. § 2 (1998).
40. Press Release, UNICEF, Breastfeeding: A simple way to save young lives (Aug. 1, 2006), http://www.unicef.org/media/media_35142.html.
41. See Ryan, supranote 24, at 1103-09. The United States national breastfeeding rates in 2004 showed that the percentage of babies who were exclusively breastfeeding at seven days of age was nearly fifty-one percent, but had fallen to just over fourteen percent at six months of age. See CTRS. For DISEASE CONTROL AND PREVENTION, Breastfeeding National Immunization Data, Table 3: Any and Exclusive Breastfeeding Rates by Age among children born in 2004, available at http://www.cdc.gov/breastfeeding/data/NIS_data/data_2004.htm (follow "Table 3. Any and exclusive breastfeeding rates by age among children born in 2004");
42. See also Mike Stobbe, More New Mothers Breast-Feed, But Turn to Infant Formula Too Soon, ASSOC PRESS, Aug. 5, 2007, (Domestic News).
43. H.R. 3531 § 2(10).
44. See Nat'l Women's Health Info. Ctr., U.S. Dep't of Health and Human Servs., The National Breastfeeding Campaign: Health Risks of Not Breastfeeding, http://www.womenshealth.gov/breastfeeding/index.cfm?page=519 (last visited July 15, 2007). Breast milk has agents (called antibodies) in it to help protect infants from bacteria and viruses. Recent studies show that babies who are not exclusively breastfed for 6 months are more likely to develop a wide range of infectious diseases including ear infections, diarrhea, respiratory illnesses and have more hospitalizations. Also, infants who are not breastfed have a 21% higher postneonatal infant mortality rate in the U.S. Some studies suggest that infants who are not breastfed have higher rates of sudden infant death syndrome (SIDS) in the first year of life, and higher rates of type 1 and type 2 diabetes, lymphoma, leukemia, Hodgkin's disease, overweight and obesity, high cholesterol and asthma. More research in these areas is needed (American Academy of Pediatrics, 2005). Babies who are not breastfed are sick more often and have more doctor's visits. Also, when you breastfeed, there are no bottles and nipples to sterilize. Unlike human milk straight from the breast, infant formula has a chance of being contaminated. Id. See also Roni Rabin, Breast-Feed or Else, N.Y. TIMES, June 13, 2006, at Fl.
45. See Nat'l Women's Health Info. Ctr., U.S. Dep't of Health and Human Servs., The National Breastfeeding Campaign: Benefits of Breastfeeding, http://www.womenshealth.gov/breastfeeding/index.cfm?page=227 (last visited Aug. 11, 2007). Breastfeeding "helps the uterus to get back to its original size and lessens any bleeding a woman may have after giving birth. ... [It also] lowers the risk of breast and ovarian cancers, and possibly the risk of hip fractures and osteoporosis after menopause." Id.
46. see ctrs. for disease control and prevention, u.s. dep't of health and Human Services, Breastfeeding Practices - Results from the 2005 National IMMUNIZATION Survey, available at http://www.cdc.gov/breastfeeding/data/ NIS_data/ data_2005.htm. 'The American Academy of Pediatrics (AAP) recommends that an infant be breastfed without supplemental foods or liquids for the first 6 months of age (known as exclusive breastfeeding). Only one state - Oregon-achieved an exclusive breastfeeding rate of 25% or greater through 6 months of age." Id.
47. Ironically, American feminists have unwittingly contributed to the difficulties working mothers face because, unlike European feminists, who sought to lessen the dual burdens of home and work, the American feminist movement focused on a notion of parity and equality between women and men. See HEWLITT, supranote 9, at 144-46. Rather than acknowledging women's sex-specific differences, and advocating for recognition and accommodation of these traits, including support for working mothers in the workplace, American feminists have shied away from making these demands out of fear that the fight for women's equality will be diluted. See Id.;
48. See also BAUMSLAG & MlCHELS, supranote 2, at 199.
49. Unfortunately, this polarity has led to antagonism between mothers who stay at home with their children and those who work. See generally SMILEY, supranote 10.
50. This premise of equality was interpreted as sameness between men and women and failed to account for women's sex-specific differences. See Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1187-90 (1989). Some legal theorists contend that "equality should no longer mean that [women] should be viewed as substantially similar to men," but instead that the social concept of being female "should be accorded 'equal acceptance' with what is socially understood" as being male. Id. at 1190.
51. See Joan Williams, Gender Wars: Selfless Women in the Republic of Choice, 66 N.Y.U. L. REV. 1559, 1596-97 (1991) ("At the core of the system is a notion of an ideal worker without primary responsibility for children: a worker absent from home a minimum of nine hours a day, five or six days a week, often with overtime at short notice and at the employer's discretion.").
52. See Abrams, supranote 41, at 1223 (arguing that "[i]f women with children are to attain equality in the workplace, then we must challenge the notion of a natural or pre-ordained line dividing work and family").
53. See Id. As the proposed New Mothers' Breastfeeding Promotion Act of 1998 explains, "(1) Women with infants and toddlers are the fastest growing segment of today's labor force. (2) At least 50 percent of women who are employed when they become pregnant return to the labor force by the time their children are 3 months old." H.R. 3531, 105th Cong. § 2 (1998).
54. One author argues that a workforce structured on the male employee model creates a disproportionately adverse impact on female workers in violation of Title VII: Although women are entering the ranks of management in record numbers, they still remain concentrated in low levels of management. One reason for the disparity is that the workplace is still structured around a male-worker-norm, in which the ideal worker is one that has no family responsibilities, or that has the privilege of hiring someone else to take care of home and child care duties. Although the expectation of an ideal worker is facially neutral, the expectation implicitly reflects the lifestyles and privileges of male workers. Women, whose occupational choices are constrained by their real or perceived roles as primary caretakers, are unable to rise in elite jobs which require them to meet this ideal and do not help to accommodate family responsibilities. Due to the male-worker-norm, women are excluded from the ranks of elite jobs. Therefore, the ideal worker assumption has a disproportionate adverse impact on women. Thus . . . employers' purportedly "objective work requirements" discriminate against women and violate Title VII. Deborah J. Vagins, Note, Occupational Segregation And The Male-Worker-Norm: Challenging Objective Work Requirements Under Title VII, 18 WOMEN'S RTS. L. REP. 79, 80 (1996).
55. While women bear the brunt of lost wages and promotions when they interrupt their careers, the cost to employers of replacing "departing women professionals - high-priced talent in the so-called 'talent wars' [is] considerable." Pamela Stone & Meg Lovejoy, Fast-Track Women and the "Choice" to Stay Home, 596 ANNALS AM. ACAD. POL. & SOC. SCI. 62, 64 (2004).
56. See HEWLITT, supranote 9, at 31, 308-11 (noting that, in a national study on high-achieving women, thirty-three percent of high-achieving American women between the ages of forty and fifty-five were childless, and citing a separate study that found that half of all female Wall Street employees were childless, in contrast to only one-quarter of their male counterparts).
57. BAUMSLAG & MlCHELS, supranote 2, at 189.
58. Jodi Kantor, On The Job, Nursing Mothers Are Finding a 2-Class System, N.Y. Times, Sept. 1, 2006, at Al.
59. See Id.
60. See Id.
61. Id.
62. Id.
63. Id.
64. See Id. The nonprofit Families and Work Institute stated that one-third of large corporations provide lactation rooms. Id.
65. Id.
66. See Id.
67. See Id.
68. Id.
69. See infra notes 75-81 and accompanying text.
70. Rona Cohen, a nationally recognized certified lactation consultant, pioneer of corporate lactation programs, and author of the study cited supranote 15, states that "[w]omen in lower-paying jobs and those that are not in an office setting face the biggest obstacles. Unfortunately, the majority of companies in certain industries (assembly lines, food service, construction, non-traditional jobs, etc.) do not provide any type of lactation support." National Healthy Mothers, Healthy Babies Coalition, Rona Cohen: An Interview About Corporate Lactation Programs, http://www.hmhb.org/RonaCohen. html (last visited July 15, 2007).
71. Id. ("[S]ome businesses allow employees to take smoking breaks, which are counterproductive to health. However, these same businesses may not afford employees in the same jobs . . . time to use a breast pump, which promotes health and saves the company money.").
72. Id.
73. The current legal framework for assessing gender discrimination is based on a neutral comparison between men and women. See infra note 100 and accompanying text. Gender discrimination is only found when there are two discrete groups: one comprised of women who have been discriminated against and a second comparator group of similarly-situated men who have not faced discrimination. See infra notes 100, 101 and accompanying text. Whenever women are present in both groups, as is the case in this emerging two-tier system, no gender discrimination will be found. See infra note 102 and accompanying text. Thus the presence of women in the comparator group neutralizes any discriminatory animus that may exist and precludes recompense where discrimination is aimed at some but not all female employees. See infra notes 99-105 and accompanying text.
74. Congress passed legislation providing unpaid leave for both male and female employees who take time off from work around the birth or adoption of a child. See Family & Medical Leave Act of 1993, 29 U.S.C. § 2601 (2006).
75. See infra note 126 and accompanying text.
76. 429 U.S. 125 (1976).
77. Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (2006).
78. See Lochner v. New York, 198 U.S. 45, 61-65 (1905) (ushering in the era of substantive due process by holding that "liberty of contract" was violated by a state law limiting the hours a baker could work).
79. See Muller v. Oregon, 208 U.S. 412 (1908) (sustaining a state law prohibiting female factory laborers from working more than ten hours a day);
80. Adkins v. Children's Hosp., 261 U.S. 525 (1923) (holding that a minimum wage law for women violated substantive due process);
81. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Adkins and upholding a state minimum wage law for female workers). See also Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 290 (1987) (noting that "protective labor legislation [was] prevalent earlier in this century").
82. See, e.g., Brown v. Bd. of Educ, 347 U.S. 483, 495 (1954) (holding that racially segregated education was "inherently unequal" and "deprived [plaintiffs] of the equal protection of the laws guaranteed by the Fourteenth Amendment").
83. 429 U.S. 125 (1976).
84. Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-15. Title VII applies to employers with fifteen or more employees, and provides that: It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. Id. § 2000e-2(a)(l).
85. See Gilbert, 429 U.S. at 145-46.
86. See, e.g., Hedenburg v. Aramark Am. Food Servs., 476 F. Supp. 2d 1199, 1205-06 (W.D. Wash. 2007) (discussing a claim of individual disparate treatment);
87. EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1268-73 (11th Cir. 2000) (analyzing claims brought against a restaurant by a group of female food servers under both disparate treatment and disparate impact theories);
88. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (discussing sexual harassment as a basis for finding a hostile work environment).
89. See, e.g., Lettieri v. Equant, Inc., 478 F.3d 640, 646-47 (4th Cir. 2007);
90. Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *22-24 (D. Or. Apr. 9, 1999);
91. See also supranote 73.
92. See, e.g., Lettieri, 478 F.3d at 646;
93. Hedenburg, 476 F. Supp. 2d at 1206-07. Courts broadly interpret the element of an "adverse employment action. This condition has been satisfied by disadvantageous transfers, delays in reinstatement, refusal to transfer, refusal to promote, unfavorable job evaluations, and other similar actions." Davis v. Ca. Dep't of Corrections, S-93-1307DFL GGH, 1996 WL 271001, at *5 (E.D. Cal. Feb. 23, 1996).
94. 411 U.S. 792 (1973).
95. Hedenburg, 476 F. Supp. 2d at 1205.
96. Id.
97. See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000);
98. L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978);
99. EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988).
100. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (internal citations and quotations omitted).
101. See Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478, 485 (3d Cir. 1999).
102. See Id. at 485, 489-90.
103. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 127-28 (1976).
104. Id. at 135 (citing the Court's own reasoning in a prior case, Geduldig v. Aiello, All U.S. 484, 496-97 (1974), in which the Court found that the denial of pregnancy-related disability benefits did not violate the Equal Protection Clause of the Fourteenth Amendment).
105. Id. at 149 (Brennan, J., dissenting) (citations omitted). While the majority found the company policy's exclusion of pregnancy-related disabilities to be gender neutral, the dissent criticized the Court's analysis as "simplistic and misleading," and noted the plan insured "risks such as prostatectomies, vasectomies, and circumcisions that are specific to the reproductive system of men and for which there exist no female counterparts covered by the plan. [Thus] pregnancy affords the only disability, sex-specific or otherwise, that is excluded from coverage." Id. at 152.
106. 42 U.S.C. § 2000e(k) (2006).
107. 479 U.S. 272, 284-85 (1987).
108. Id. at 289 (citing 123 Cong. Rec. 29658 (1977)).
109. 462 U.S. 669, 678-79 (1983).
110. Id. at 678 (emphasis added).
111. Guerra, 479 U.S. at 285.
112. See 42 U.S.C. § 2000e(k) (2006).
113. Id.
114. See Julie Manning Magid, Pregnant with Possibility: Reexamining the Pregnancy Discrimination Act, 38 AM. BUS. L.J. 819, 823-25 (2001).
115. Id. at 825-26.
116. Id.
117. See Brianne Whelan, For Crying Out Loud: Ohio's Legal Battle with Public Breastfeeding and Hope for the Future, 13 AM. U.J. GENDER SOC. Poi/Y & L. 669, 700-01 (2005) (arguing that "the PDA does not require the comparability analysis, since distinctions based on pregnancy are per se violations of Title VII. . . . This per se approach is the framework that Congress intended and that the Supreme Court supported").
118. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 135 (1976) (quoting Geduldig v. Aiello, 417 U.S. 484, 496-97 n.20 (1974)).
119. See Diana Kasdan, Reclaiming Title VII and the PDA: Prohibiting Workplace Discrimination Against Breastfeeding Women, 76 N.Y.U. L. REV. 309, 319 (2001).
120. Id. at 319-20.
121. See Gilbert, 429 U.S. at 161 n.5 (1976) (Stevens, J., dissenting) ("It is not accurate to describe the . . . two groups [as] 'pregnant women and nonpregnant persons.'. . . The classification is between persons who face a risk of pregnancy and those who do not.").
122. See Id. at 160-62. The logic of the Gilbert dissent, regarding classifications of persons who face a risk of pregnancy versus those who do not, also holds true for classifications of persons capable of breastfeeding versus those who are not.
123. See Henry Wyatt Christup, Litigating a Breastfeeding and Employment Case in the New Millennium, 12 YALE J.L. & FEMINISM 263, 279-82 (2000).
124. In 1971, the Supreme Court ruled that Title VII forbids discrimination that subjects a person to disparate treatment based on gender in conjunction with a second shared characteristic. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544-55 (1971) (holding that, absent a bona fide occupational qualification, a school board would violate Title VII by having "one hiring policy for women and another for men - each having pre-school-age children").
125. See generally Marjorie A. Shields, Annotation, Validity, Construction, and Application of Governmental or Private Regulation of Breast-Feeding, 5 A.L.R. 6th 485, 491-92 (2005).
126. 49 F. Supp. 2d 305 (S.D.N.Y. 1999).
127. Id. at 306. Plaintiffs action also included a discrimination claim under the Americans with Disabilities Act (ADA), which was dismissed because the court concluded that the ADA did not cover pregnancy, and thus employers were not required to afford employees reasonable accommodations for breastfeeding or expressing breast milk. Id. at 308-09.
128. Id. at 311 (citation omitted).
129. Id. at 309-10. The district court held that no gender discrimination was shown under a "sex-plus" theory because no similarly-situated class of men exists with the same secondary characteristic, i.e., the ability to breastfeed or pump milk, and therefore plaintiffs claim was not cognizable under Title VII. Id. at 310-11 (rejecting the plaintiffs theory that she was "a victim of gender discrimination because ... of a characteristic - breast feeding - that is unique to women" and concluding that "the 'sex-plus' theory does not go so far").
130. 374 F.3d 428 (6th Cir. 2004).
131. Id. at 430, 440 (affirming that defendant's prohibition on breastfeeding was not discrimination based on sex and, accordingly, did not violate the Ohio public accommodation statute).
132. Id. at 437.
133. Id. at 439 (quoting Coleman v. B-G Maint. Mgmt., 108 F.3d 1199, 1204 (10th Cir. 1997)).
134. Id.
135. See, e.g., Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *30 (D. Or. Apr. 9, 1999);
136. Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492 (D. Colo. 1997) ("[B]reast-feeding and child rearing concerns after pregnancy are not medical conditions related to pregnancy or childbirth within the meaning of the PDA. Accordingly, Fejes' Title VII claim is not viable.");
137. Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990). Nothing in plaintiffs case states a claim under Title VII as amended by the Pregnancy Discrimination Act. . . . While it may be that breast-feeding and weaning are natural concomitants of pregnancy and childbirth, they are not "medical conditions" related thereto. Admittedly, the Act does not define what constitute "related medical conditions." Id.
138. 1999 U.S. Dist. LEXIS 7680, at *12.
139. Id.
140. Id. (citations omitted).
141. Id. at *30 (citation omitted).
142. See Barrash v. Bowen, 846 F.2d 927, 931-32 (4th Cir. 1988) (concluding that breastfeeding could not form the basis for a disparate impact claim because, under the PDA, "pregnancy and related conditions must be treated as illnesses only when incapacitating . . . [and o]ne can draw no valid comparison between people, male and female, suffering extended incapacity from illness or injury and young mothers wishing to nurse little babies"). See also Wallace v. Pyro Mining Co., No. 90-6259, 1991 U.S. App. LEXIS 30157, at *3 (6th Cir. Dec. 19, 1991). Wallace argues that the [PDA], 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 [PDAJ's applicability. Id. But See Dike v. Sch. Bd., 650 F.2d 783 (5th Cir. 1981) (reversing the district court's dismissal of plaintiffs claim). Dike's interest in breastfeeding is a protected liberty interest, however, [this] is the beginning rather than the end of the constitutional inquiry. We reverse because a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief.... Id. at 787.
143. Hedenburg v. Aramark Am. Food Servs., Inc., 476 F. Supp. 2d 1199, 1206 (W.D. Wash. 2007) (enumerating the elements of disparate treatment analysis).
144. See Id.
145. See New Mothers' Breastfeeding Promotion Act of 1998, H.R. 3531, 105th Cong. § 2(19) (1998) ("Many employers deny women the opportunity to breastfeed or express milk. Some women have been discharged for requesting to breastfeed or express milk during lunch and other regular breaks. Some women have been harassed or discriminated against.").
146. Although nursing employees theoretically have protection under the PDA for pregnancy, childbirth, and related medical conditions, in reality, women who breastfeed or express milk at work remain unprotected from harassment, termination, or a hostile work environment due to the federal courts' interpretation of breastfeeding claims as not falling within the PDA's ambit. See Id. § 2(13). Although title VII of the Civil Rights Act of 1964 was amended by the Pregnancy Discrimination Act in 1978 to prohibit discrimination on the basis of pregnancy, childbirth, or related medical condition, courts have not interpreted this amendment to include breastfeeding despite the intent of the Congress to include it. Id. (citation omitted).
147. As previously noted, a nursing employee may face disparate treatment, which involves a tangible adverse employment action, such as being fired or demoted. See Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *20-22 (D. Or. Apr. 9, 1999). In a hostile work environment, an employee may face harassment for attempting to breastfeed or express milk at work. See Martinez v. NBC, Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999).
148. Pregnancy Discrimination Act Amendments of 2005, H.R. 2122, 109th Cong. (2005). "To amend the Civil Rights Act of 1964 to protect breastfeeding by new mothers; to provide for a performance standard for breast pumps; and to provide tax incentives to encourage breastfeeding." Id. The proposed amendments to the PDA aim "to clarify that breastfeeding and expressing breast milk in the workplace are protected conduct under the amendment made by the Pregnancy Discrimination Act of 1978 to title VII of the Civil Rights Act of 1964." Id. § 102(b)(2). The proposed amendments would amend section 701(k) of the Civil Rights Act of 1964 as follows: "(1) by inserting '(including lactation)' after 'childbirth,' and (2) by adding at the end the following: . . . lactation' means a condition that may result in the feeding of a child directly from the breast or the expressing of milk from the breast."
149. Id. § 103. Beginning in 2000, Representative Carolyn Maloney has introduced similar versions of these proposed amendments, which have yet to become law. The amendments to the PDA proposed in 2005 were referred to the House Subcommittee on Employer-Employee Relations on May 31, 2005. On May 9, 2007, the Breastfeeding Promotion Act of 2007, H.R. 2236, 110th Cong. (2007), was introduced by Representative Maloney. This bill was referred to the House Subcommittee on Health, Environment, Labor, and Pensions on July 17, 2007.
150. In 2000, Senator Snowe introduced amendments to the PDA "[t]o amend the Civil Rights Act of 1964 to protect breastfeeding by new mothers ... § 701(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(k)) is amended - (1) by inserting 'breastfeeding,' after 'childbirth,' each place it appears . . . ." Pregnancy Discrimination Act Amendments of 2000, S. 3023, 106th Cong. (2000). Senator Snowe's bill had no cosponsors; after being read twice it was passed on to the Senate Committee on Health, Education, Labor and Pensions.
151. See New Mothers' Breastfeeding Promotion Act of 1998, H.R. 3531, 105th Cong, § 6(a)(1) (1998), which would have added the following amendment to the Family and Medical Leave Act of 1993 (specifically, 29 U.S.C. § 2612(a)): NURSING MOTHERS' BREAKS. A lactating mother . . . shall, during the first 12-month period for which the employee is entitled to such leave ... be given up to one hour in each 8 hour work day in such period to express milk for a child. The time may be taken in 2 one-half hour periods or in 3 20 minute periods. For work shifts longer or shorter than 8 hours proportional adjustments shall be made in the time given an employee to express milk for a child. The time taken will not be charged against the employee's entitlement to leave . . . employers are not required to compensate employees for time under this paragraph. ..... PURPOSE OF AMENDMENTS. The purpose of the amendments made by this section is to establish a legal minimum for the amount of time that a woman is entitled to express milk at the workplace. The amendments are not intended to preclude an employer from voluntarily providing more time for the employee to express milk or to diminish any rights the woman would otherwise have pursuant to the . . . the Family and Medical Leave Act of 1993.
152. H.R. 3531 § 6(a)(1).
153. An employer is required to accommodate an employee's religious observance and practice unless the employer "demonstrates that he is unable to reasonably accommodate" the employee's religious observance or practice "without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j) (2006). See generally Shana M. Christrup, Breastfeeding in the American Workplace, 9 AM. U.J. GENDER SOC. POL'Y & L. 471 (2001).
154. See generally Kantor, supra note 49.
155. See Nat'l Conf. of State Legs., 50 State Summary of Breastfeeding Laws (July 2007), http://www.ncsl.org/programs/health/breast50.htm.
156. Id. These fifteen states are: California, Connecticut, Georgia, Hawaii, Illinois, Minnesota, Mississippi, New York, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, and Washington. Id. See N.Y. LABOR LAW § 206-c (McKinney 2007). Wyoming has a breastfeeding resolution. See State Summary, supra note 133. Montana requires public employers to have a written policy supporting breastfeeding women after they return from maternity leave. MONT. CODE ANN. § 39-2-215 to -217 (2007). Puerto Rico has a comprehensive statute entitled Act to Regulate the Period to Breastfeed or to Express Breast Milk. P.R. LAWS ANN. tit. 29, § 478a-h (2001).
157. See, e.g., CONN. GEN. STAT. § 31-40w (2003);
158. GA. CODE ANN. § 34-1-6 (2004);
159. HAW. REV. STAT. ANN. §§ 378-1, -2(7) (LexisNexis 2004);
160. MINN. STAT. ANN. § 181.939 (West 2006);
161. OKLA. STAT. ANN. tit. 40, § 435 (West Supp. 2006);
162. R.I. GEN. LAWS § 23-13.2-1 (Supp. 2005);
163. TENN. CODE ANN. § 50-1-305 (2005);
164. WASH. REV. CODE § 43.70.640 (2006). Title VII only covers an employer with at least fifteen employees in twenty or more weeks of the current or preceding year.
165. See 42 U.S.C. § 2000e(b) (2006).
166. Most of these laws lack specific penalties for any violations. See infra notes 138-151 and accompanying text. Puerto Rico does, however, provide that a fine may be imposed that is "equal to three times the salary paid to said employee for each day she was denied the period to nurse or express breast milk." P.R. LAWS ANN. tit. 29, § 478h. California levies a $100 civil penalty for a violation of "any provision of this chapter." CAL. LAB. CODE § 1033(a) (2003).
167. See State Summary, supra note 133.
168. California's law does not specify that the break time shall be unpaid unless it does not run concurrently with authorized rest time. See CAL. LAB. CODE § 1030.
169. See CAL. LAB. CODE §§ 1030-33;
170. Nursing Mothers in the Workplace Act, 820 ILL. COMP. STAT. §§ 260/1-99 (2004);
171. MINN. STAT. ANN. § 181.939;
172. TENN. CODE ANN. § 50-1-305. New York enacted a similar law on August 15, 2007, which adds an antidiscrimination provision.
173. See N.Y. LABOR LAW § 206-c.
174. See supra note 139.
175. MINN. STAT. ANN. § 181.939. The statute does not require an employer to provide break time under this section if doing so "would unduly disrupt the operations of the employer." Id.
176. See HAW. REV. STAT. ANN. § 378-2(7), -10.2 (LexisNexis 2004);
177. CONN. GEN. STAT. § 31-40w (2006). Connecticut also requires that "[a]n employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, other than a toilet stall, where the employee can express her milk in private."
178. CONN. GEN. STAT. § 31-40w(b).
179. See CONN. GEN. STAT. § 31-40w;
180. HAW. REV. STAT. ANN. § 378-2(7), -10.2. Mississippi protects an employee's right to express breast milk during meal or break time. See MISS. CODE ANN. § 71-1-55 (West 1999 & Supp. 2006). New Mexico requires that an employer shall provide a nursing employee a "clean and private" space (that is not a bathroom) to use a breast pump, and "flexible break times." N.M. STAT. ANN. § 28-20-2 (West 2007).
181. CONN. GEN. STAT. § 31-40w. An employer is defined as "a person engaged in business who has one or more employees," and '"reasonable efforts' means any effort that would not impose an undue hardship on the operation of the employer's business . . . [meaning] any action that requires significant difficulty or expense ... in relation to . . . the size of the business, its financial resources and the nature and structure of its operation." § 31-40w(d).
182. GA. CODE ANN. § 34-l-6(b) (2004).
183. See also OKLA. STAT. ANN. tit. 40, § 435 (West Supp. 2007);
184. OR. REV. STAT. ANN. § 653.077(2)(a) (West Supp. 2006);
185. R.I. GEN. LAWS § 23-13.2-1(a) (2004).
186. R.I. GEN. LAWS § 23-13.2-1. The statute provides an undue hardship exception and also requires that the "department of health shall issue periodic reports on breastfeeding rates, complaints received and benefits reported by both working breastfeeding mothers and employers." § 23-13.2-1(c) to -1(d).
187. See WASH. REV. CODE § 43.70.640 (2006).
188. TEX. HEALTH & SAFETY CODE ANN. § 165.003(a) (Vernon 2001). Texas allows a business to be designated "mother friendly" if it develops a policy that addresses the following criteria: (1) work schedule flexibility, including scheduling breaks and work patterns to provide time for expression of milk; (2) the provision of accessible locations allowing privacy; (3) access nearby to a clean, safe water source and a sink for washing hands and rinsing out any needed breast-pumping equipment; and (4) access to hygienic storage alternatives in the workplace for the mother's breast milk.
189. Id. See also Texas Dep't of State Health Servs., WIC Nutrition, List of Texas Mother-Friendly Worksites, http://www.dshs.state.tx.us/wichd/ lactate/mother-worksites.shtm#item5 (last visited Sept. 28, 2007).
190. TEX. HEALTH & SAFETY CODE ANN. § 165.003(a);
191. WASH. REV. CODE § 43.70.640(1).
192. WASH. REV. CODE § 43.70.640. The statute requires "[e]mployers seeking approval of a workplace breastfeeding policy [to] . . . submit the policy to the department of health" for review. Id.
193. New Mothers' Breastfeeding Promotion Act of 1998, H.R. 3531, 105th Cong. § 2(14) (1998).
194. The amendments to the PDA proposed in 2005 provide that "the breastfeeding promotion and support credit... for the taxable year is an amount equal to 50 percent of the qualified breastfeeding promotion and support expenditures of the taxpayer for such taxable year." Pregnancy Discrimination Act Amendments of 2005, H.R. 2122, 109th Cong. § 451(a) (2005).
195. See, e.g., Media Release, La Leche League International, LLLI Offers Corporate Lactation Support to Help Companies Comply with New Illinois Law (Oct. 2001), http://www.lalecheleague.org/Release/corporate.html. La Leche League International is a "nonprofit, nonsectarian organization that provides breastfeeding information, encouragement, education and mother-to-mother support around the world," and offers three types of corporate lactation support packages.
196. Id. The Medela Corporate Lactation Program website states that the most successful programs "offer at least one of these four main components: Private 'Mother's Rooms' for expressing milk in a secure, relaxing environment. Access to hospital-grade, autocycling breastpumps. Subsidization or outright purchase of individually owned breastpumps for employees. Consultation services of certified lactation specialists."
197. See Medela Corporate Lactation Program, http://www.medela.com/ newfiles/corplactprgm.html (last visited Aug. 20, 2007).
198. For example Norway created a "time-account" option in 1994 that allows employees to combine partial parental leave with reduced working hours. See IDA OUN & GLORIA PARDO TRUJILLO, INT'L LABOUR ORG., MATERNITY AT WORK: A REVIEW OF NATIONAL LEGISLATION 44 (2005), available at http://www.ilo.org/public/english/protection/condtrav/publ/wf-iogpt-05.htm.
199. See H.R. 3531. (15) Many employers have seen positive results from facilitating lactation programs in the workplace, including low absenteeism, high productivity, high company loyalty, high employee morale, and lower health care costs. (16) Parental absenteeism due to infant illness is 3 times less among the parents of breastfed children than those that are formula fed. (17) Worksite programs that aim to improve infant health may also bring about a reduction in parental absenteeism and health insurance costs.
200. Id. § 2.
201. See Convention on the Rights of the Child, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990).
202. See also Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding, available at http://www.unicef.org/programme/ breastfeeding/innocenti.htm. In 1990, more than thirty governments adopted the Innocenti Declaration, which was subsequently endorsed by the forty-fifth WHA and by the executive board of UNICEF. See INNOCENTI RESEARCH CENTRE, UNICEF, 1990-2005: CELEBRATING THE INNOCENTI DECLARATION ON THE PROTECTION, PROMOTION AND SUPPORT OF BREASTFEEDING (2d ed. 2006), available at http://www.unicef-irc.org/homepages/files/documents/ f_7.pdf. The Innocenti Declaration aimed to mobilize support for breastfeeding, to recognize the "right of the infant to nutritious food enshrined in the Convention on the Rights of the Child . . . [and] to launch breastfeeding onto a higher public plane." Id. at 1.
203. See UNICEF, Overview: Convention on the Rights of the Child, http://www.unicef.org/ceecis/overview_1583.html (last visited Aug. 20, 2007). Similarly, the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Dec. 18, 1979, 1249 U.N.T.S. 13, which is "often described as an international bill of rights for women," was adopted in 1979 by the U.N. General Assembly, has been ratified by 185 countries (over ninety percent of U.N. members) as of November 2, 2006. However, the United States has not ratified CEDAW and is, therefore, "not bound to put the provisions of the Convention into practice." DlV. FOR THE ADVANCEMENT OF WOMEN, DEP'T OF ECON. AND SOC. AFFAIRS, UNITED NATIONS, CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, available at http://www.un.org/womenwatch/daw/ cedaw/ (follow link to "State Parties").
204. OUN & TRUJILLO, supra note 154, at 65.
205. The Maternity Protection Convention has been ratified by thirteen countries to date: Albania, Austria, Belarus, Belize, Bulgaria, Cuba, Cyprus, Hungary, Italy, Lithuania, Moldova, Romania, and Slovakia. See Convention No. C183, http://www.ilo.org/ilolex/cgi-lex/ratifce.p1?C183 Oast visited Sept. 2, 2007). The ILO lists publications discussing issues of maternity and employment from countries around the world at http://www.ilo.org/public/english/ protection/condtrav/publ/ index.htm (last visited Aug. 20, 2007).
206. See C183 Maternity Protection Convention, 2000, http://www.ilo.org/ilolex/cgilex/convde.pl?C183 (last visited Sept. 2, 2007).
207. See BLUEPRINT FOR ACTION ON BREASTFEEDING IN EUROPE, PROMOTING, PROTECTING AND SUPPORTING BREASTFEEDING: AN ACTION PLAN FOR EUROPE 3, available at http://ec.europa.eu/health/ph_projects/2002/promotion/ fp_promotion_2002_a3_18_en.pdf. Not all European countries have laws guaranteeing work breaks for breastfeeding or expressing milk.
208. See id.
209. See generally OUN & TRUJILLO, supra note 154.
210. BLUEPRINT FOR ACTION ON BREASTFEEDING IN EUROPE, supra note 161. The European Union passed a Council Resolution on Nutrition and Health, in December 2000, which officially recognized breastfeeding as a priority. Id.
211. Id. See also Breastfeeding Promotion in Europe, http://ec.europa.eu/health/ph_projects/2002/promotion/promotion_2002_18_en.htm (last visited Aug. 20, 2007).
212. See Promotion of Breastfeeding in Europe-Pilot Testing the Blueprint for Action, http://ec.europa.eu/health/ph_projects/2004/action3/ action3_2004_18_en.htm (last visited Aug. 20, 2007).
213. See Amy Joyce, Too Often, Family Leave Leaves Much to Be Desired, WASH. POST, Aug. 27, 2006, at Fl;
214. see generally JODY HEYMANN ET AL., THE PROJECT ON GLOBAL WORKING FAMILIES, HARVARD SCHOOL OF PUB. HEALTH, THE WORK, FAMILY, AND EQUITY INDEX: WHERE DOES THE UNITED STATES STAND GLOBALLY? (2004), available at http://www.hsph.harvard.edu/ globalworkingfamilies/images/report.pdf.
215. See OUN & TRUJILLO, supra note 154, at 69-70 nn.19-48 (listing breastfeeding protections in various nations). In addition to European countries, other nations that afford nursing employees break times include: Argentina, Botswana, Cambodia, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Egypt, Iran, Japan, Lesotho, Madagascar, Mauritius, Mongolia, Nicaragua, Niger, Papua New Guinea, Senegal, Somalia, Tunisia, Venezuela, Vietnam, and Zimbabwe. Id. at 69 nn.32-36, n.39.
216. See CTR. FOR WORK-LIFE POLICY, OFF-RAMPS AND ON-RAMPS: KEEPING WOMEN ON THE ROAD TO SUCCESS (2005), available at http://www.worklifepolicy.org/ documents/news-pr10.pdf. "Companies need to devote urgent energy to attracting, retaining and re-attaching high caliber female talent because a 'war for talent' is looming on the horizon." Id. at 3. The joint report of the Center for Work-Life Policy and Harvard Business Review found that over one-third of highly qualified women leave the workforce for some time period. Id. Over ninety percent want to return to work, but only three-quarters are able, and only forty percent regain full-time jobs. Id. But see Lisa Belkin, The Opt-Out Revolution, N.Y. TIMES, Oct. 26, 2003 (Magazine), at 42. Belkin argues that "[i]t's not just that the workplace has failed women. It is also that women are rejecting the workplace." Id. at 46. Yet Belkin acknowledges that "the current economy is hardly welcoming to re-entrants, and the traditional workplace structure does not include a Welcome Back mat." Id. at 58.
217. OFF-RAMPS AND ON-RAMPS, supra note 167, at 3. The first generation of corporate gender policies were all about giving women access to the workplace. Corporations now need to move to the second generation of policy and practices that will more fully realize the talents, skills and ambitions of their female population. ... [A]n innovative action agenda [is needed] which includes: Creating a rich menu of on-ramps embracing and enabling a comprehensive definition of flexibility... [e]liminating the stigma surrounding work-life options .... Id.
218. Susan Faludi notes: American women have sped across so much ground that we can scarcely recognize the lives our grandmothers lived.. . . What is missing is the deeper promise of a woman's revolution, a revolution that was never intended to champion cut-throat competition or winner-take all ethics, a revolution that was abandoned on the road to economic opportunity. . . . The opponents of women's liberation are girding for the next assault by American women. They seem to believe it will be an assault on the world as it is. We can only hope they are right. FALUDI, supra note 7, at xiv, xvi.