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Kristin Pagano Speaks: Breastfeeding Accommodations and the Illinois Bar Exam

As some of you may already know, the case of Kristin Pagano has been highlighted recently in various media outlets. Ms. Pagano submitted a breastfeeding accommodations request to the Illinois Board with respect to the February 2015 Illinois bar exam. Her request was denied by the Illinois Board. After she asked for reconsideration of the decision, I’m happy to report that Ms. Pagano has won her battle and the Illinois Board will be granting her accommodations.

Ms. Pagano reached out to Ms. JD with her story, which is re-printed below from her blog with her permission. We believe that her story may be helpful and inspiring to those in a similar situation.

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My husband and I are expecting our first child, due on January 2nd, and we couldn’t be more excited. We decided to make a last minute move to Chicago to be closer to our families.

I am a licensed attorney in California, and as a result of the move, I must take the Illinois bar exam in order to continue practicing law in Illinois.   So, in October I applied to take the February 2015 Illinois bar exam. I knew that it would be difficult taking the exam post partum; however, I knew that I could do it with adequate preparation and the support of my family.  I am also very eager to get back into the job market and pursue the career that I worked so hard for.  Thus, I submitted my application in and paid $1150 in application fees.

I plan to exclusively breastfeed my daughter. After speaking with my physicians, it became apparent to me that I could not physically sit for the exam so soon after childbirth without an accommodation to extract breast milk (aka “pump”).   If I was unable to pump during the exam, my breasts would become engorged with milk, a very painful condition that would affect my ability to concentrate on the exam. Infants eat every 2-3 hours, and sometimes as often as every 90 minutes; thus, I would need to continue to pump on this schedule to avoid engorgement and maintain my milk supply. Failing to do so would risk infection and could disrupt my milk production.

Knowing this, I completed the required documentation for a “Non Standard Accommodation” and submitted the materials with my bar application. I also submitted the required Physician Form from my OB/GYN which explained the medical necessity for my requests. Specifically, I asked for the following:

Break periods of 20-30 minutes every 2 hours to extract breast milk (pump);
A private, sanitary space to pump;
A female proctor (if needed to monitor me during pumping);
Refrigerated storage; and
Additional time to compensate for pumping breaks.

I based my request off of Courtney Taylor’s request for the California Bar Exam that I came across in a blog post on the “Ms. J.D” blog (http://ms-jd.org/blog/article/breastfeeding-and-the-california-bar-exam).  I thought that this request was completely reasonable and consistent with my physician’s recommendations. I was also confident that my request would be granted in light of the Pregnancy Discrimination Act, the Patient Protection and Affordable Care Act and Illinois law. I did, however, expect that my request might be modified or adjusted by the board. I never imagined that they would outright deny it.

On November 6, 2014, I received a letter from the Deputy Director to the Illinois Board of Admissions to the Bar stating that my request for a Non-Standard Accommodation could not be granted because “[n]ursing, as I am sure you are aware, is not a physical disability and therefore not covered under the Americans with Disabilities Act and would not require you to complete Non Standard Testing Accommodation forms.” I was instructed to drop my breast pump off at the “Help Center” and that I could leave the exam room to pump in a family restroom during the exam. In addition, I would not be permitted to leave the exam room at certain times and I would not receive any extra time to compensate me for having to leave the room and follow this procedure.

I was shocked and surprised by this response.

Let me explain why the existing procedure is unreasonable and disadvantages nursing mothers.  For those unfamiliar with the bar exam, it is crucial for an examinee to allot equal amounts of time to each question in order to complete the question and obtain a passing score.  Missing one question can (and probably will) cost you the exam.  Now, imagine having to complete 3 essay questions in a 90 minute period and then 6 questions in a 3 hour period.  To succeed on the bar exam, you need to allot 30 minutes  to each essay question.  By following the existing procedure, I could potentially lose 1/3 of the allotted exam time by signing out of the room, going to the Help Center to retrieve my pump, finding the nearest “family restroom,” pumping (approx. 20 minutes), cleaning up, storing the breast milk, going back to the Help Center, returning to the exam room and signing back in.  I’m estimating this could be up to a 50 minute process, even if everything goes as plans.  Now, what happens when things don’t go as planned?  What if no one is in the Help Center when I need to get the pump?  What if the bathroom is on the other side of the building?  What if there is no outlet to plug in a pump?  Taking this estimate and the hypothetical what-ifs into consideration, it would be nearly impossible to complete all essay questions and obtain a passing score.

I immediately responded and asked if there was an appeal process, and if not, whether I could pump in the exam room while taking the exam. (To be clear: I didn’t want to pump in the exam room, as I was conscious of the disruption it would cause to other examinees. Nevertheless, I knew that Illinois law permitted breastfeeding in any public or private place and without an accommodation, it was my only option.) I was told that there was no appeal process and my questions would be forwarded to her director.

I decided to write a letter requesting reconsideration. I outlined my opinion with respect to existing state and federal laws protecting nursing mothers, as well as the medical reasons for my request. I quickly sent it over to the Illinois Board.

I also reached out to various organizations via Twitter to express my shock and disappointment. I knew I couldn’t be the only woman in this situation and I needed validation. Was I overreacting? Was my request unusual? I was contacted by Staci Zaretsky, an editor at Above the Law.   On November 19th Staci published my story on the Above the Law website. Within days, my story was picked up by the Wall Street Journal Law Blog, the Chicago Tribune, Cosmopolitan and various media outlets and blogs. I received an outpouring of support from both women and men as a result of these stories.   I am so appreciative and grateful for this support, and it was reassuring to know that I wasn’t overreacting and was doing the right thing.

After receiving my reconsideration request, the Illinois board decided to discuss my situation at their Friday, November 21 meeting. In the meantime, the articles continued to pop up online. On Tuesday, November 25th—one day after the Chicago Tribune article was published—the Illinois board notified me that it had reconsidered and decided unanimously to grant my request.

It was such a relief to get this news. I am extremely grateful and appreciative of the board’s serious reconsideration and ultimate decision to grant my request. I hope that the board adopts these accommodations as official policy applicable to all nursing mothers.

Although the media response was mostly positive, readers were quick to make incorrect assumptions about myself, nursing and women in the legal field.

Some of the responses were quite comical. For instance, some readers commented on how selfish I was to demand to bring my crying infant into the testing room with me. Or, that as a lawyer, I could more than afford to pay for childcare during the exam. Other responses ranged from misinformed to misogynistic:

I could feed my child formula if I couldn’t pump;
I could just wait to take a later exam;
I was “entitled” and asking for “special treatment;”
I would use the pumping time to “cheat” on the exam;
I should have waited to have a child if I knew I was taking the exam; and
I made a choice to have a baby and now I have to deal with it.

And these were the more tame comments.

It was apparent that many of these readers didn’t bother to actually read the articles they were commenting on. Many were uneducated on the “mechanics” of nursing and female anatomy in general. Others, unfortunately, harbored outdated and backwards opinions of mothers in the legal profession and the workplace in general.

So, to clear things up: No, I did not ask to bring my infant into the exam room. No, my request was not about feeding my child. No, I wasn’t going to “cheat” during a pumping break (hence the female proctor).  No, I cannot wait another year to take the exam. And whether or not I choose to have a child (and when) is nobody’s business and shouldn’t disqualify me from pursuing my career.

Rather, my request was to accommodate a pregnancy-related medical condition that would otherwise physically and mentally impede my ability to take the exam. It is not so much about feeding my child as it is about addressing a physical barrier to taking the exam—I need an accommodation to extract breast milk throughout the day whether I feed that milk to my child or not.   (For those who are unaware, breast milk will come whether I want it to or not. I cannot “control it” or schedule it around the exam.)  Without an accommodation, I am forced to choose between my health and the exam, ultimately forcing me to choose between motherhood and my career. Is that really a decision that we should be forcing women to make in today’s day and age? Should we be penalizing women for motherhood? We certainly don’t put men in these positions…

For those that believe that I can “just wait” and take the exam later, I ask you this: Would you be able to stay afloat financially if you were told you couldn’t work in your profession for one year or more? The bar exam is only offered twice each year. Results are not released for months. If I pushed back the exam until July, I would effectively be out of work for one year, at minimum, assuming that I pass the exam. If I don’t pass the exam, or postpone until February 2016, it will be even longer. Like many other law graduates, I have significant student loan debt that I would like to pay off. I also have personal expenses and a family. Why should I put off my career and be penalized for being a mother when I am more than willing to put in the time and effort to take the exam and be a productive member of society?

Lastly, I did not ask for “special treatment.” Rather, I asked for the same treatment as other examinees.   I asked for the same amount of time to take the exam as everyone else.  Essentially, I was asking for a modified exam schedule, which is already an option for other ADA-accommodated examinees.   I also understand the unique circumstances of the bar exam and am conscious of other examinees. I don’t think pumping in the exam room is the right answer for anyone, for a multitude of reasons, hence my accommodation request.  And, to those of you who think that I would use the accommodation to “cheat” (or that I would even be able to), shame on you.

I know that I am not the only woman in this position. I hope that by sharing my story, I can bring light to this issue and encourage other nursing mothers to stand up for themselves and tackle outdated obstacles placed in our paths. We shouldn’t be pressured to choose between our health, our children and our careers.  As a society, we should be encouraging women to pursue both their career and motherhood, not discouraging them from doing so.

[ For media links and more info, please check out the original post here. ]

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