Is Breastfeeding Protected by Human Rights Legislation?
What a difference a few years makes! In 1991, INFACT Canada surveyed Human Rights Commissions and Fair Practices Offices across Canada and asked if a woman's right to breastfeed was protected. It appeared that many commissions had never before considered the question; a few speculated as to whether or not breastfeeding would be covered by prohibition of discrimination on the basis of sex, pregnancy or family status. Only the province of Saskatchewan had had an actual complaint; the woman in question received a small cash settlement and an apology from the service provider.
When INFACT Canada posed the same questions in the spring of 2000, the Commissions and Fair Practices Offices were much more knowledgeable and supportive. Most provinces and territories stated that a woman's right to breastfeed was protected both in public places and at the workplace. Women also enjoy the protection afforded by the landmark 1996 BC Supreme Court Decision (Poirier) which affirms that to discriminate against a breastfeeding woman is to discriminate on the basis of sex.
And it gets better. Some provinces are proactively educating the general public, the media, employers and other groups about the importance of supporting the rights of breastfeeding women. Some include this information in their general public education materials. Human Rights Commissions in Ontario and Nova Scotia are carrying out or planning major public education campaigns specific to breastfeeding!
The amounts of the settlements are also increasing. The woman involved in the 1991 Saskatchewan complaint received just $100 (which she donated to a local food bank). In 1996 a woman who was asked to "cover up or leave" was awarded $2,500, and Cindy Rock of Newmarket received $10,000 in an out-of-court settlement after being asked to leave a restaurant because she was breastfeeding. Hopefully this is a reflection of the increased social value placed on breastfeeding and the contribution made by breastfeeding women.
Although there are many positive developments, there is still work to do. Human rights officials and employees are not immune to entrenched, negative societal attitudes. The Manitoba Human Rights Commission has upheld two complaints by breastfeeding woman, however, their executive director stated that "the right to breastfeed is not absolute ... and an employer or service provider has the right to attempt to show that it may be unreasonable or an undue hardship to accommodate a woman who wishes to breastfeed."
Another disappointing response came from Alberta. Although officials state that breastfeeding is encompassed by gender, which is a protected ground under the Human Rights, Citizenship and Multiculturalism Act, there is an unfortunate attitude that breastfeeding women must be discreet and "sensitive to the needs expressed by other parties". For example, a breastfeeding mother was asked to leave a restaurant "when she did not use any form of cover while her child was nursing ... in conciliation, the woman accepted that it was not the nursing per se that troubled the restaurant, but rather what they perceived as her lack of discretion. The restaurant accepted that the staff could have offered the woman a clean cloth that would have met their requirements. They offered the woman an apology for not having thought of this or another option at the time (our emphasis)."
According to Janette Hurley, a breastfeeding mother and family physician, Alberta's response is at variance with public attitudes there: "We breastfeed any time, anywhere, with citizens who are supportive of our breastfeeding the future generation of Albertans."
As a number of human rights officials told INFACT, Human Rights Codes are living things which continue to evolve, and they are public driven. As more women exercise their right to breastfeed without impediment, public officials become better informed. That is why it's so important that women are educated about their rights surrounding breastfeeding, and that those who experience discrimination act to protect those rights.
It also speaks to the need to educate about the many benefits of breastfeeding, not just to mothers and infants, but to the public at large. A "breastfeeding culture" is within our reach.
Responses from the various commissions can be found in the Breastfeeding Right Chart.
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