LawPulse

After initially denying a mother's request, the board of admissions will grant breastfeeding women extra time to express milk during the Illinois bar exam.

On November 25, 2014, the Illinois Board of Admissions to the Bar granted bar applicant Kristin Pagano a special accommodation that affords her the time to express breast milk during the February 2015 Illinois bar exam without counting the time against her. The board had previously denied Ms. Pagano's request. When her request was denied, she wrote the board requesting that it reconsider its decision, arguing that her request was reasonable and required under both federal and Illinois state law.

According to Regina Kwan Peterson, the Board's director of administration, the initial decision was made by office staff "based on past practice." Previous exam-takers had only asked to be allowed to leave the room to pump their breast milk. They hadn't asked to have that time credited back to them.

According to Peterson, the board itself didn't consider Pagano's request "until after she received the first response and let us know that it wasn't ok." After reading her letter, the board reviewed where the law is going and granted her request.

Pumping breaks 'a medical necessity'

Pagano, who is licensed to practice in California, has a background in employment law. Her letter notes that her initial request was denied "because nursing is not a physical disability and not covered under the Americans With Disabilities Act (ADA)." Pagano argued that "denying reasonable accommodations to [herself] and other breastfeeding mothers…violates the ADA in light of the Pregnancy Discrimination Act."

Although there are significant protections for pregnant and breastfeeding women in the workplace, whether those protections apply in the context of a professional licensing exam have not been extensively tested. Pagano wrote in her letter that Congress' intent "to protect breastfeeding mothers and provide adequate accommodations" is clear. She also said that several governmental agencies, including the Centers for Disease Control and Infection, "support breastfeeding [and] promote accommodations for breastfeeding mothers."

Illinois law is also moving towards supporting pregnant women and breastfeeding mothers, most recently with changes to the Illinois Human Rights Act, effective January 1, 2015, that expand protections for pregnant women in the workplace (see the November 2014 LawPulse for more about the new law that makes pregnancy a protected class).

According to Pagano, in California, "at least two" bar examinees have been granted accommodations similar to those that she requested. The American Civil Liberties Union has "successfully advocated on behalf of two women for nursing accommodations in the professional examination context," she says. According to its blog, the ACLU has helped obtain reasonable accommodations for breastfeeding mothers with both the American Board of Internal Medicine and the Law School Admissions Council, the entity that administers the LSAT. See https://www.aclu.org/blog/womens-rights/choice-no-mother-should-have-make and https://www.aclu.org/blog/womens-rights/victory-nursing-mothers-taking-lsat-finally-catch-break.

Pagano said that being given an accommodation for breastfeeding is not an "advantage" granted to nursing mothers. Rather, she said, it affords nursing mothers an opportunity to receive the same treatment as other exam takers. "The need for pumping breaks isn't just a matter of convenience, it is a medical necessity." It is a time-consuming process that could put a nursing mother at a serious disadvantage when taking the bar exam.

Pagano's letter notes that Illinois law already provides protections for nursing mothers. The Right to Breastfeed Act (740 ILCS 137/1 et seq.) allows mothers to breastfeed their children in any location, public or private. Had Pagano been denied an accommodation for pumping, she could have relied on this statute to pump in the exam room itself. In her letter, Pagano asserted her right to pump in the exam room, while noting that it would be the least effective solution for herself and other exam takers, "[resulting] in harassment, embarrassment, and disruption to [herself]…[and] distraction and disruption to other exam takers." (View Pagano's letter on the Above the Law blog at http://abovethelaw.com/2014/11/new-mother-denied-the-right-to-breastfeed-during-bar-exam/2/).

'[T]he right thing to do'

After receiving Pagano's letter, the Board carefully considered the state of the law and noted that it hadn't yet been tested whether the statutes apply to professional testing. The Board's mindset was, "Why even test it?" according to Peterson. "On balance, [granting Ms. Pagano the accommodation] was the right thing to do," says Peterson.

At least three other nursing mothers who requested accommodations during the February 2015 bar exam will be offered the same accommodations as Pagano. They will be given a private testing space, possibly with other nursing mothers. They will have access to a private, sanitary space for pumping breast milk and will receive "stop the clock" breaks of up to 30 minutes per three-hour testing session; the breaks can be taken in shorter increments so long as they do not exceed 30 total minutes. The Board has also guaranteed a female proctor for breastfeeding exam takers.