Puerto Rico: Puerto Rico Supreme Court: Failure To Provide Safe, Private And Hygienic Area For Breastfeeding In The Workplace May Violate Working Mother's Constitutional Right To Privacy

Last Updated: 5 February 2016
Article by Shiara Diloné-Fernández and Gabriel Maldonado-González

On January 25, 2016, the Supreme Court of Puerto Rico held that employers in Puerto Rico should provide a safe, private, and hygienic place for working nursing mothers to extract breast milk during the nursing period as provided under Act No. 427-2000, as amended ("Act 427"). The Supreme Court further held that, given certain conditions, failure by an employer to provide a safe, private, and hygienic place to extract breast milk may be a constitutional violation of the working mother's right to privacy under the Constitution of Puerto Rico if the working mother's decision to breastfeed her child is affected by the employer's violation of Act 427.

In Siaca v. Bahia Beach Resort & Golf Club, LLC et al.,1 a security guard supervisor ("the plaintiff") at a resort informed her employer that she would continue breastfeeding her child once she returned to work from maternity leave.  Plaintiff alleged that upon returning to work, Plaintiff was directed to use various rooms that were inadequate for breastfeeding either due to lack of safety, privacy or hygiene. 

Due to construction at the resort, many areas, including the Human Resources office, were located on trailers scattered around the construction site.  Initially, Plaintiff was directed to use a bathroom to express her breast milk.  Concerned about the germs and poor hygiene found in bathrooms, plaintiff requested an alternative and was directed to use office trailers that were long walks from her workplace, taking up approximately 15-minutes from her thirty-minute breastfeeding break and forcing her to be late when returning to her post.  Such tardiness subjected her to disciplinary actions and eventually caused her to lose her supervisory position.

In addition to the distance, the trailers were not hygienic nor adequately protected Plaintiff's privacy.  One of the trailers had uncovered windows, which Plaintiff had to cover before each use to prevent persons passing by from looking into the breastfeeding room.  In another trailer, the humidity level was high and the room had mold and insects.  After placing several complaints to management throughout several months, Plaintiff was directed to use a small storage room in the human resources office trailer, which was dirty, full of items, and had humidity and mold problems.  On several occasions at the different locations, personnel entered the room while Plaintiff was extracting breast milk, despite a sign Plaintiff had posted on the exterior side of the door that read: "Lactating Mother-Please Do Not Interrupt." 

In a lawsuit, Plaintiff alleged that her employer failed to provide her with an adequate place for breast milk extraction as each location was in a deplorable, unsafe, and unhealthy condition, preventing her from exercising her right to extract breast milk in the workplace. She further asserted that her employer violated her constitutional right to privacy as the assigned places exposed her to be seen by her coworkers.  At trial, with the support of expert opinion, plaintiff testified that, as a result of the employer's actions, she experienced frustration and anger and suffered from depression, prompting her to seek psychiatric treatment.  Her expert witness further testified that the high levels of stress negatively impacted her breast milk extraction capacity, forcing her to stop breastfeeding her child. 

The trial court found for the plaintiff, concluding that the spaces offered by the employer for breast milk extraction violated Act 427, as they were unsafe and unhealthy, which exposed the plaintiff and her child to health complications. The trial court's decision was reversed on appeal on the grounds that Act 427 does not clearly state the requirements for a breastfeeding area, and that said statute could not be construed as forcing private employers to build permanent facilities for breast milk extraction purposes, which would constitute undue hardship. Based on the foregoing, the Court of Appeals concluded that the employer had provided the plaintiff with the time and space to extract breast milk, and since the workplace was a construction site, the employee had to use the spaces that were available.

The Supreme Court of Puerto Rico reversed the appellate court, reasoning that while Act 427 does not specify the requirements for a room to be deemed "adequate" for purposes of breastfeeding or breast milk extraction, the statute does require that the room be "enabled" for such purposes.  The high court further explained that Act No. 115-2000, an analogous local legislation governing public employers, provides that an adequate space for breastfeeding or breast milk extraction is an area of physical space that guarantees the breastfeeding mother privacy, security and hygiene, without requiring the creation or construction of new structures within the agency.  Extending these requirements to private sector employers covered by Act 427, the Court found that the employer in this case did not provide a private, safe and hygienic place for breast milk extraction, and thus incurred in an Act 427 violation.

Additionally, the Supreme Court found that by impeding breastfeeding or taking measures that make breastfeeding more onerous, an employer violates a mother's right to privacy under the Puerto Rico Constitution.  However, the high court explained that a constitutional violation will follow only in cases where the working mother was forced to decide not to breastfeed her child because of the employer's negligent acts or omissions.  Such interference with a mother's independence to make important decisions about her newborn's upbringing constitutes a violation of the right to privacy.2 

The Supreme Court further clarified that for the constitutional violation to arise, the employee must establish causation between the employer's failure to provide an adequate place for breastfeeding and the damages resulting from the mother's negatively impacted breast milk capacity or the mother being forced to stop breastfeeding her child. Namely, that the employer's failure to comply with Act 427 effectively nullified the employee's personal decision to breastfeed her child.  Therefore, employees are faced with a high burden of proof to establish a constitutional violation of the right to privacy.

Lastly, the Court found that the plaintiff may seek damages, as well as the statutory compensation of three times the salary for the time she was not able to enjoy her breastfeeding rights.  Notably, for the court to award damages, the employer's actions must be of such a nature that they constitute a violation of an employment statute and a firmly established public policy.  

The Siaca decision serves as an important reminder that Act 427 requires all employers provide breastfeeding leave for one year after a mother returns to work, allotting one hour per day, which can be divided in two 30-minute periods or three 20-minute periods, at the employee's choosing, provided that she works at least seven and a half hours per day. In case of small businesses that comply with Small Business Administration (SBA) regulations, the employer only needs to provide one 30-minute period or two 15-minute periods.  Employers are also required to provide a reasonably safe, private, and hygienic place for the employee to express milk.   When determining whether a place is "reasonably safe, private and hygienic," employers should consider, among other factors, the overall cleanliness of the space, whether it is air-conditioned or has good ventilation, the distance between the designated break space and the employee's job post, the availability of electrical outlets, and whether the employee's privacy is being protected by covered windows, and functioning door locks.

Footnotes

1. 2016 TSPR ___, 194 D.P.R. ___ (2016).

2. Although uncommon, this is not the first time that the Puerto Rico Supreme Court has found a violation to the constitutional right to privacy in an employment case. Thirty years ago, in Arroyo v. Rattan Specialties, Inc., 177 D.P.R. 35 (1986), the Supreme Court found a constitutional right to privacy violation when an employer terminated an employee who refused to take a polygraph test, and allowed the employee to recover damages in addition to his wrongful termination claim under Act No. 80 of May 30, 1976.

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