States, "A person who has been discriminated against in employment or housing due to pregnancy or a medical condition which results from pregnancy may file a discrimination claim with the state commission for human rights under RSA 354-A or may seek immediate injunctive relief in superior court." The commission for human rights already accepts breast-feeding discrimination charges under sex discrimination laws, so they do not anticipate this bill would have a significant impact on state government.
New Hampshire and federal law protects women who breastfeed in public and at work. However, New Hampshire does not grant breastfeeding mothers as many rights as other states.
Breastfeeding in public
New Hampshire law protects the right of mothers to breastfeed in public. According to the statute:
Breast-feeding a child does not constitute an act of indecent exposure and to restrict or limit the right of a mother to breast-feed her child is discriminatory.
-NH RSA 132:10
The New Hampshire Commission for Human Rights enforces this law.
Breastfeeding at work
State anti-discrimination law prohibits discrimination based on sex. “Sex” includes pregnancy and medical conditions which result from pregnancy. That generally means an employer cannot discriminate against an employee for breastfeeding. However, New Hampshire law does not explicitly mention lactation, so there’s a chance a sex discrimination lawsuit based on breastfeeding would fail in state court.
Federal labor law requires employers to provide nursing mothers with the following:
- Reasonable unpaid break time to express milk, up to the child’s first birthday
- A private place, other than a bathroom, to express breast milk
An employer with fewer than fifty employees may apply to the Department of Labor for an exemption from these federal requirements, if the employer can prove “undue hardship.”
The Federal Department of Labor enforces this law.
Insurance coverage for breastfeeding
The federal Affordable Care Act (also known as “Obamacare”) requires most health insurance to cover women’s preventive health services – including breastfeeding supplies and counseling – with no copayment or other cost sharing. There is no similar law at the state level.
Other government support for breastfeeding
The New Hampshire Advisory Council on Lactation is responsible for reviewing best practices on behalf of pregnant women and lactating mothers, and recommending any legal changes to the state Legislature. The council includes elected and appointed officials, business representatives, health care providers, and members of the public.
The federal Special Supplemental Nutrition Program for Women, Infants and Children (WIC) also provides educational support and other incentives for mothers who breastfeed. For example, WIC provides additional food to women who exclusively breastfeed their babies. The New Hampshire Department of Health and Human Services manages WIC in the Granite State.
Breastfeeding laws in other states
Some states require certain businesses to provide a private space for breastfeeding. For example, Mississippi requires licensed child care facilities to provide nursing mothers with a private place to express milk. Child care facilities in Mississippi also have to provide a fridge to store milk.
Other states allow nursing mothers to be excused from jury duty.
PROS & CONS
“Breastfeeding mothers need more legal protection in New Hampshire.”
- Breastfeeding has many health benefits for both mother and baby. According to the American Academy of Pediatrics, “Given the documented short- and long-term medical and neurodevelopmental advantages of breastfeeding, infant nutrition should be considered a public health issue and not only a lifestyle choice.” New Hampshire should accordingly prioritize policies that protect and encourage breastfeeding.
- According to a 2016 report from the Centers for Disease Control and Prevention (CDC), New Hampshire ranks 36th in the United States when it comes to the percentage of infants ever breastfed. Roughly one-fifth of infants in New Hampshire are never breastfed. This shows New Hampshire has room to increase the number of women who breastfeed.
- While the New Hampshire Human Rights Commission accepts and resolves breast-feeding discrimination charges under the laws against sex discrimination, courts in New Hampshire have not conclusively ruled that breastfeeding falls under the umbrella of sex discrimination at work. New Hampshire therefore needs to make clear in statute that it is not acceptable for employers to discriminate based on breastfeeding.
“Breastfeeding mothers have adequate legal protection in New Hampshire.”
- While New Hampshire has a relatively high percentage of mothers who choose not to breastfeed, this is arguably not due to a lack of support for breastfeeding. According to a 2016 report from the Centers for Disease Control and Prevention (CDC), New Hampshire ranks 2nd in the nation on the Maternity Practices in Infant Nutrition and Care (mPINC) score. According to the CDC, the mPINC score “represents the level at which birth facilities in each state provide maternity care supportive of breastfeeding.”
- The New Hampshire Human Rights Commission already accepts and resolves breast-feeding discrimination charges under the laws against sex discrimination. New Hampshire therefore does not need additional laws explicitly covering breastfeeding.
- Businesses – such as child care facilities – would be burdened by additional requirements to accommodate breastfeeding.
Creates a cause of action for a person who believes she has been discriminated against by an employer for breast-feeding. The Human Rights Commission already takes on cases in which a woman believes she has been discriminated against by an employer for breast-feeding, under the state's sex discrimination laws, so this bill would affirm rights that already exist.
Establishes the advisory council on lactation. The council is to consider issues such as the availability of accommodations and support for breastfeeding mothers, whether New Hampshire needs to revise the law to protect breastfeeding mothers, etc.
Establishes an advisory council on lactation. Before amendments, this bill would have required employers to provide reasonable accommodations for pregnant employees, such as more frequent breaks.
Criminalizes toplessness for women, with an exception for breastfeeding.
Requires employers to provide reasonable accommodations to women who are breastfeeding. The bill also exempts a nursing mother from jury duty upon her request.
Requires employers to provide reasonable accommodations to women who are breastfeeding. The bill also exempts a nursing mother from jury duty upon her request. The House amended the bill to instead expand the right of a woman to breastfeed in any place open to the public. For example, the amended bill states, "No person shall ... direct a mother to cover her child while breastfeeding."
Do breastfeeding mothers need more legal protection in New Hampshire?
A former employee is suing DHHS, claiming they fired her because of her need for breaks to breastfeed her newborn child at his nearby daycare center. Earlier this month, a superior court judge turned down the state's move to throw out the case. A trial is scheduled for September 2019.
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