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January 30, 2001

An overextension of maternity rights

Donna Laframboise
National Post

In 1999, Doris Degagne was fired for refusing to return to work because she was breast-feeding her daughter. Earlier this month, Ms. Degagne became a heroine in certain circles when a labour arbitrator ruled her employer discriminated against her on the basis of sex.

But this decision is no victory for women. Rather, it is a shameful example of how women say they're only interested in equality but then end up demanding rights above and beyond what everyone else enjoys.

The dispute between Ms. Degagne and Carewest, a government-funded organization caring for the mentally and physically disabled in Calgary, resulted in a 50-page decision. Although this ruling has been interpreted to mean employers must allow women to breast-feed on the job, its implications extend well beyond this.

It's important to be aware that Ms. Degagne did not ask to breast-feed on the job. Instead, she wanted a six-month leave of absence added to her nine-month maternity leave. Her employer offered instead to accommodate her by providing a private room where she could express milk on her breaks via a breast pump.

Yet even though her part-time recreational therapist duties amounted to only 12 six-hour shifts every month (her schedule was six days on, eight days off), and even though other nursing mothers manage the breast pump routine quite handily, Ms. Degagne apparently considered it too much of a bother.

John Moreau, the labour arbitrator, makes it clear Carewest acted reasonably and in good faith when it denied Ms. Degagne's request for the leave of absence. In fact, he makes it clear he would have ruled against her if she'd wanted it for any other reason.

But Ms. Degagne's request concerned breast-feeding. "Breast feeding is a choice only a woman can make," writes Mr. Moreau, "but, once made, [it] benefits the woman, her child and society as a whole. Breast-feeding in my view is as intimately connected to childbirth as pregnancy is to childbirth and should be safeguarded in the same way."

Citing a ruling by the Supreme Court of Canada, Mr. Moreau says employers must not only act reasonably when dealing with pregnant and lactating women, they must bend over backward and perform somersaults.

Carewest was found guilty of the dread crime of gender discrimination because it failed to explore every conceivable alternative prior to firing Ms. Degagne -- which apparently amounts to proof it hadn't "accommodated the grievor to the point of undue hardship."

What does this mean for the rest of us? The number of women for whom breast-feeding on the job is a realistic option is actually small, since neither on-site day care nor a full-time caregiver in a position to transport the baby between home and workplace is available to many.

A far bigger concern for the average employer is that women and their unions will argue -- as Ms. Degagne and her union successfully did -- that breast-feeding gives women the right to arbitrarily extend their maternity leave well beyond the norm.

What specific hoops an employer who fires such a woman will be required to jump through to avoid a finding of sex discrimination is anyone's guess. Mr. Moreau's ruling is rather vague on that point.

One thing, however, is certain: Women who breast-feed are now in a special category. A man might have good reasons for requesting a leave of absence to care for his disabled child. A woman might have a compelling argument in favour of taking time off to nurse her dying parent. But the breast-feeder is the only one who has her employer over a barrel.

Feminism arose because women were tired of being coddled and condescended to. But even though Ms. Degagne produced nothing like a doctor's note saying it would be harmful to her baby for her to resume working, even though this was about nothing more than her personal preference to remain off the job longer than usual, employers are now supposed to indulge women such as her.

Apparently, biology still is destiny.

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