ACLU announces breastfeeding settlement with Jeffco school claiming it did nothing wrong

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The American Civil Liberties Union of Colorado announced today that it has reached a settlement with a Jefferson County charter school that allegedly refused to renew a teacher's contract after she complained about a lack of breastfeeding accommodations. The ACLU and the woman at the center of this case say it's a landmark settlement that sends a clear message that employers have to follow laws and provide basic support for breastfeeding mothers.

The school, however, says the allegations are false and the ACLU's presentation of the settlement is completely inaccurate.

"I'm proud of the school for taking steps and making sure nursing mothers in the future feel more welcome and supported," says Heather Burgbacher, a former teacher at the Rocky Mountain Academy of Evergreen, or RMAE, a public charter school that made it difficult for her to pump breast milk at work and then didn't renew her contract when she complained about it -- at least according to the lawsuit she filed with the help of the ACLU of Colorado. "I hope that other employers can take what happened here and try to institute...policies...so there is support not just at my school...but all across the nation."

Burgbacher, who's 37 and has two daughters, ages two and four, was a technology teacher and coordinator at the school when she had her second daughter. She needed to pump for twenty minutes, three times each week.

The ACLU says the school violated the 2008 Colorado Nursing Mothers Act by failing to provide Burgbacher a private place to pump breast milk and neglecting to take appropriate measures to assist her in covering classes for the time periods she needed for this activity.

The act, officially called the Workplace Accommodations for Nursing Mothers Act, says employers must make "reasonable efforts to accommodate an employee who chooses to express breast milk in the workplace."

An attorney with the ACLU sent us the legislative declaration supporting the act, which notes health and developmental benefits of breastfeeding for babies and mothers:

In addition to individual health benefits, providing opportunities for breastfeeding results in substantial benefits to employers, including reduced health care costs, reduced employee absenteeism for care attributable to infant illness, improved employee productivity, higher morale and greater loyalty, improved ability to attract and retain valuable employees, and a family-friendly image in the community.

"Women in this state do not have to choose between breastfeeding a baby and returning to work," says Rebecca Wallace, staff attorney at the ACLU of Colorado. "That is important for so many reasons.... We want women to be able to make personal decisions about childbearing without their employer and especially when their employer is the government."

She adds, "Many women are mothers and women are an essential part of our workforce."

The ACLU says that in the settlement, on view below, the school agreed to make significant policy changes to make sure women who are nursing have the time and place to express breast milk. The settlement also includes monetary compensation for Burgbacher -- with the exact amount redacted in the document sent our way. Among a handful of provisions, the settlement says the school will provide explicit written notice to employees regarding their rights under the Nursing Mothers Act, as well as a private room for breast milk expression. The settlement also says the school will designate a human resource manager in charge of assisting employees in coordinating pumping breaks.

"It is a right just like any other right," says Burgbacher, who lives in Confier and now works as an instructional designer at Pearson Education in Centennial. "Knowing that something so natural can't be held against you is just essential to having that work-life balance. You can choose to do both and be successful. Knowing this will help other mothers make the decision to breast feed or not.... I'm just so happy."

Wallace says this settlement should serve as a model in Colorado.

"We hope it will lead employers across the state to improve working conditions for working mothers," she says.

"The settlement is really the first of its kind," she adds, noting that this is the first time in Colorado that there has been a settlement under this act in response to a legal complaint.

Continue reading for the response from the school, which denies all allegations in the lawsuit. While the ACLU press release applauds RMAE for agreeing to this settlement and working with Burgbacher to change its policies, school officials say the ACLU is completely misrepresenting the agreement.

In the school's lengthy press release, on view below, several RMAE officials refute Burgbacher's original claims and argue that the policies agreed to in the settlement have always been in place.

Here' s a quote from Dan Cohen, RMAE executive director:

It's unfortunate that the ACLU chose to target the Rocky Mountain Academy of Evergreen to boast the 'first public settlement of a lawsuit regarding the Nursing Mothers Act'. Especially in light of the fact that the plaintiff's accusations were false, and that she was accommodated by the school in terms of time and space to express breast milk in accordance with the law and with RMAE's policies and procedures around this issue.

And here' s a comment from Dina Walton, RMAE's director of human resources:

ACLU's statement that RMAE is currently creating new policies and procedures in response to this settlement is not accurate, as those policies were already in place and were being implemented. Since its inception, RMAE has had detailed policies and procedures in place to uphold all state and federal regulations to protect the rights of its personnel. This includes providing the appropriate workplace accommodations for nursing mothers, including the plaintiff in this case.

Walton says Burgbacher's contract was not renewed in 2011 when her position was eliminated due to an organizational restructuring.

And Kelli Anderson, a board treasurer at RMAE, offers a statement maintaining that the settlement is mainly about revolving the dispute quickly. It reads:

Continuing to battle this lawsuit would have taken more valuable time and resources away from the students and classrooms at the Rocky Mountain Academy of Evergreen and this was not something we were willing to do. We have agreed to a settlement in order to put this situation behind us and to refocus our attention on what matters most - providing a highquality public education to our students.

The ACLU's Wallace says she was shocked to hear the school was claiming it had policies in place that were actually implemented.

"It does not make sense that we would struggle between one another for policy changes that were already in place," she says, "and if they were in place, they weren't [being practiced]."

She says there was no private location, no notice posted and no person designated to help in this situation.

However, Anderson, the RMAE spokeswoman, however, asserts that absolutely no policies were changed as a result of this case. When asked for specifics, she says a business manager was in charge of handling this issue and numerous people helped accommodate Burgbacher. She also says the teacher was provided with business offices and classrooms as needed, and at one point had her own ,where she could shut the door. Wallace emphasizes that regardless of the back-and-forth, she is very pleased with what RMAE has agreed to in the settlement.

"The ACLU believes RMAE has taken important...steps to protect working mothers," she says.

For her part, Burgbacher says she was clearly let go because of the conflict around breastfeeding, which was personally very trying for her.

At the time, "I was devastated," she says. "It made me question my own values that I knew in my heart were right. I felt like I was being punished.... It was probably one of the lowest points in my life."

But now, with the latest settlement, she is ready to move on and hopes other women won't face the same problems she did.

Women and mothers "do have rights," she says, "and they shouldn't be afraid to stand up for their rights."

Continue for the full settlement agreement and the entire response from the charter school. The full settlement agreement Burgbacher Settlement Agreement Redacted

Charter school's response RMAE Statement(091812)

Full ACLU press announcement

DENVER -- The American Civil Liberties Union of Colorado and the national ACLU reached a settlement on Friday with a Jefferson County public charter school on behalf of teacher Heather Burgbacher who lost her job for exercising her right to pump breast milk at work. This is the first public settlement of a legal challenge brought under the Colorado Nursing Mothers Act, a 2008 law safeguarding a woman's right to continue breastfeeding when returning to work after having a baby.

In the settlement, Rocky Mountain Academy of Evergreen (RMAE) agreed to make significant policy changes to ensure that nursing employees have the time and space to express breast milk at work. RMAE has also agreed to provide ACLU client Burgbacher monetary compensation.

"To its credit, RMAE has agreed to make significant policy changes that I feel confident will ensure that the next nursing mom working at RMAE will have the workplace support she needs to nurse her baby for as long as she wants," said Burgbacher. "I am deeply satisfied with this settlement."

"RMAE is to be commended for its significant strides to protect the rights of nursing mothers in the workplace," said ACLU of Colorado staff attorney Rebecca Wallace. "By bringing Ms. Burgbacher's story to light and enforcing the Nursing Mothers Act, the ACLU hopes to change the old-fashioned view held by some employers that a model employee is one that does not get pregnant, does not give birth, does not breast feed, and does not have child-care responsibilities. RMAE's steps in resolving this case serves as a model to other employers."

Burgbacher had been a highly valued teacher at the RMAE for five years when she gave birth to her second child. In violation of 2008's Colorado Nursing Mothers Act, RMAE failed to provide a private place for her to express breast milk and to take appropriate steps to assist Burgbacher in covering her classes for the very brief periods during which she needed to pump breast milk. Burgbacher needed to pump for 20 minutes, three times each week.

Shortly after she complained about the schools' failure to accommodate her need for time and space to express breast milk, RMAE abruptly informed her that her employment contract would not be renewed last year, despite years of extremely positive performance evaluations.

"The law does not allow employers to force a working mother like Heather Burgbacher to choose between breastfeeding her baby and returning to work," said ACLU of Colorado Cooperating Attorney Mari Newman of Killmer, Lane and Newman, LLP. "This settlement serves as a reminder to all Colorado employers that firing a female employee simply because she asserts her legal rights has very serious consequences. RMAE deserves recognition for working cooperatively to resolve this matter in a way that meaningfully protects the rights of nursing mothers in the workplace."

Expressing breast milk on the job is a right guaranteed by the Colorado Workplace Accommodations for Nursing Mothers Act, as well as other state and federal anti-discrimination laws. The Nursing Mothers Act mandates that employers provide time on the job in a private location for mothers to express breast milk.

"For many mothers, breastfeeding is an essential part of caring for their children that requires minor, but necessary, accommodations in the workplace - the kinds of minor workplace adjustments that employers routinely grant other workers who need them," said ACLU Women's Rights Project staff attorney Galen Sherwin. "A woman's employer should have no say in the very personal decision about whether to breastfeed her baby."

More from our Education archive: "Photos: John Hickenlooper dancing, eating cafeteria food at education presser"

Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at Sam.Levin@Westword.com.

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