SMART bus driver sues, alleges employer didn't provide secure space to pump breast milk

A SMART bus driver is suing her employer, alleging it didn't provide a secure space for her to pump breast milk when she returned from maternity leave in April.

Locations the public metro Detroit bus service suggested Jasmine Emery use to pump, her federal lawsuit alleges, included a hospital, a university and a porta john at a transit center. The bus service's lack of accommodation, she alleges, is a violation of federal law.

Emery filed the lawsuit against the Suburban Mobility Authority for Regional Transportation or SMART on May 1 in U.S. District Court. It alleges violations of the Providing Urgent Maternal Protections for Nursing Mothers or PUMP Act, which was signed into law Dec. 29, 2022.

Under the Fair Labor Standards Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view, to express breast milk at work. This right is available for up to one year after the child's birth, according to the U.S. Department of Labor.

The protections were extended by the PUMP Act, which allows more nursing employees the rights to receive break time to pump and a private place to pump. Those employees include agricultural workers, nurses, teachers, truck and taxi drivers, home care workers and managers, according to the labor department.

A Bloomberg Law story in March indicates about a dozen employers nationally have been sued in federal court under the newer federal act. Last year in Michigan, the U.S. Department of Labor found Stellantis' auto plant in Sterling Heights violated the rights of nursing mothers employed there and announced in a release that the automaker would create additional lactation rooms and correct its break policy to avoid future violations.

Emery, 33, a mother of four from Oakland County, requested SMART accommodate her need to pump breast milk during her work hours in a private, clean room, free from intrusion by coworkers. But, her lawsuit states, it failed to do so and instead reduced her hours.

Her attorney, Rob Howard, on May 7 withdrew a motion for a preliminary injunction filed with the lawsuit, writing that SMART has taken steps to resolve the issue and provided a secure, private room for Emery to pump on scheduled breaks. Emery returned to work May 6, her lawyer wrote, adding she found the accommodation was sufficient. But, he said, she is not dropping the lawsuit.

Bernard Parker III, SMART's vice president of external affairs, told the Free Press on May 7: "I don’t have any comments on pending litigation." In an email May 2 he wrote: "SMART has no comment on this matter."

Back to work but still suing

Howard said Emery worked a full shift May 6. He said the room SMART found for her is a secure office space at its Oakland Terminal in Troy — the same terminal but a different space than where Emery alleges a male coworker walked in on her while she was pumping last month. In that incident, she was in an unsecured room with a chair propped up against the door, according to the complaint filed in federal court.

Howard said Emery's lawsuit remains pending as they allege SMART violated the PUMP Act for a month and that Emery took time off work because she didn't have accommodations and had to go home early to pump, suffering financial losses.

He said she threatened in an email in April to SMART that she may be filing a lawsuit when she gave the bus service 10 days' notice to make an accommodation. Howard said SMART had "the opportunity to correct this before the actual filing" and he believes it took the filing of the lawsuit for SMART to take action.

"She asked them over and over and they basically said: 'We've done all we can do,' and then when the litigation was filed, suddenly they can find a secure room and work out ways for her to go there instead of pumping on a city bus."

Howard said he hopes the matter can be resolved short of a trial.

Complaint: SMART told driver to 'pump on the bus'

According to her complaint, Emery gave birth to her youngest son in December. She chose to breastfeed, which health experts say is beneficial for babies, and needs to pump and store her milk about every two hours to maintain enough milk to feed him. The complaint states she has been a bus driver with SMART for more than three years. Howard said her route primarily is in Oakland County.

Per the complaint, Emery contacted human resources at SMART to find out how her pumping would be accommodated at work.

Management didn't have an area available for her that was secure or a restroom. She was referred to the bus service's vice president of bus operations, who Emery informed in a call April 9 that she needed an electrical outlet to use her breast pump. On April 10, she wrote in an email that she needed an accommodation to pump breast milk at work, according to the complaint.

It states that Emery was directed to use a training room at the bus facility, but was unable to secure the door and that SMART directed her to put a chair against the door and a note on the outside. While pumping April 10 in the unsecured room, a male employee pushed past the chair and interrupted her while she had her breasts exposed, according to the lawsuit.

"SMART Bus told Emery that she could pump breast milk in the bus while she was on break," according to the complaint. "Instead of finding a suitable location for pumping milk, SMART Bus purchased a breast pump that did not require an electrical outlet and told Emery to pump on the bus. The purchased pump was a hands free pump that SMART Bus expected Emery to use while driving her route. Emery refused to pump milk on the public bus."

Emery alleges SMART directed her to use the lactation room at McLaren Hospital on her route but the hospital would not allow her to do so as she is not an employee. She was referred to the public lounge, which is not private, according to the complaint.

It states SMART directed Emery to use a room at Oakland University, also on her route, but it is not easily accessible and its hours are restricted. And, the lawsuit alleges, the bus service told her she could be accommodated on her route near the old state fairgrounds in Detroit until May 9 "but the only bathroom available at the State Fair Center during Emery's shift is a porta john."

The old state fairgrounds will be home to a new transit center in Detroit opening May 11 that is named for Jason Hargrove, a bus driver who died from COVID-19 in 2020.

The complaint states Emery provided SMART 10 days' notice of its need to accommodate her pumping at work on April 18. Five days later, it states, SMART told her she would only be accommodated with one break to pump in the unsecured room, which Emery indicated was insufficient.

"There's going to be a bit of a learning curve here for employers, and we understand that. But this is really straightforward for what they need to provide," Howard said of the PUMP Act.

Contact Christina Hall: chall@freepress.com. Follow her on X: @challreporter. Support local journalism. Subscribe to the Free Press. Submit a letter to the editor at freep.com/letters.

This article originally appeared on Detroit Free Press: SMART bus driver sues: Work didn't have secure spot to pump breast milk