H.F. 2259, introduced in the Minnesota House of Representatives, would provide additional protections for employees in the state who are nursing mothers. The bill proposes amendments to existing law (Section 181.939 of the Minnesota Statutes), which currently requires all employers, no matter how small, to provide “reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child.” The statute further requires employers to “make reasonable efforts to provide a room or other location . . . other than a toilet stall, where the employee can express her milk in privacy.”
H.F. 2259 seeks to amend the statute in two significant ways. First, it seeks to further define the location which employers must “make reasonable efforts to provide” to nursing mothers. The proposed amendment provides that the location cannot be a “bathroom or a toilet stall.” It further requires that the location be “shielded from view and free from intrusion from coworkers and the public” and that it also include “access to an electrical outlet.”
Second, and more significantly, H.F. 2259 provides that any violation of the statute constitutes “an unfair employment practice” under the Minnesota Human Rights Act (“MHRA”). Specifically, the bill seeks to amend the MHRA to make it an “unfair employment practice” for an employer to violate Section 181.939 “[e]xcept when based on a bona fide occupational qualification.” A “bona fide occupational qualification” or “BFOQ” is where discrimination on the basis of a protected class is reasonably necessary to the normal operation of the employer’s business. BFOQ’s are very narrowly construed, however, and they constitute an affirmative defense under the discrimination laws for which the burden is on the employer to establish. Examples of current BFOQ’s are mandatory retirement ages for pilots (precluding age discrimination claims by pilots hitting the retirement age), mandatory religious beliefs for teachers in private religious schools (precluding religious discrimination claims for failure to hire applicants of different faiths) and mandatory female gender for strippers in gentlemen’s’ clubs (precluding gender discrimination claims for failure to hire male strippers).
The full impact of H.F. 2259’s proposed amendments is difficult to anticipate. There are no court decisions which interpret the current version of Section 181.939 and what “reasonable efforts to provide” a nursing location means. Presumably, however, H.F. 2259 would effectively make nursing mothers a new protected class under the MHRA. This would prohibit employers from discharging or retaliating against employees because they request nursing breaks, or for otherwise failing to accommodate them in accordance with the statute’s terms. It is unclear what would establish a BFOQ under H.F. 2259, and the bill provides no guidance. Employees would have access to the full range of remedies provided for violations of the MHRA, including damages and attorneys’ fees.