By Annie Sweeney and Bonnie Miller Rubin
By the time she sits for the Illinois state bar exam in February, Kristin Pagano will have spent more than $1,200 registering for the test and will have studied eight hours a day for months to commit to memory the case law and legal rules on everything from taxes to criminal procedure.
The 27-year-old, who lives in the north suburbs, will also be a brand-new mother to a baby girl, whom she plans to breast-feed.
Knowing how stressful the make-or-break bar exam is, Pagano, due to give birth in January, sought permission this month from the board that administers the test to stop the clock for the 20- to 30-minute breaks she thinks she will need to pump breast milk for her daughter during the three-hour sessions.
Pagano wasn’t seeking more time — but rather to be assured she wouldn’t lose the time she needs to extract the milk. But the Illinois Board of Admissions to the Bar has so far denied Pagano’s request, prompting the attorney, who is licensed in California, to pen a four-page letter, arguing the board should reconsider.
In the letter, Pagano called the board’s decision to require that she and other nursing mothers leave the exam room to pump without additional testing time “impractical, unfair and discriminatory.” She argued that it runs counter to federal and state efforts to protect the rights of breast-feeding mothers.
“It’s discouraging,” Pagano said of the initial denial. “Because it forces women in my situation to either put off your career or sit and take this exam and sacrifice your health and comfort.”
The board, which considers a wide range of accommodations for test-takers, has agreed to review Pagano’s case, and a decision could come as early as this week.
Debate surrounding breast-feeding has surfaced on the Instagram accounts of celebrities including model Gisele Bundchen and actress Alyssa Milano, as well as in reaction to a May incident at the National Restaurant Association trade show in Chicago, where an exhibitor was escorted out because of her infant, whom she had breast-fed.
And while federal agencies in recent years have become more aggressive about protecting women from such discrimination, Pagano’s complaints with the board are somewhat unusual in that they take issue with conditions at an exam — not in the workplace.
But experts called Pagano’s request for a “stop the clock” break reasonable, given the physical demands of breast-feeding and the mental challenge of the bar exam — which Pagano must pass to join her chosen workplace.
“I think that what she is expecting is to be treated normally, to be treated like a person,” said J. Kathleen Marcus, a national expert in breast-feeding litigation. “She has the right to give birth, and she had the right to choose when and how. And she should not have to give up her profession in order to have that choice. Men don’t have to. Why should she?”
Over the years, many new mothers have taken the bar exam without having official breaks to pump breast milk, said Regina Kwan Peterson, director of administration for the admissions board.
Applicants who are breast-feeding have asked for access to a secure, private room to store breast-feeding equipment.
The board, however, was willing to give “serious consideration” to the request after receiving Pagano’s letter, Peterson said.
“We are very respectful of her needs, and all nursing mothers,” she said.
The “stop the clock” breaks have traditionally been granted to people with disabilities who have documentation from a medical professional. For example, someone with a chronic disease that requires rest breaks could be approved, Peterson said.
There is a one-hour break each day between the two three-hour testing sessions, and test-takers are allowed to leave the exam room in an emergency, but that time is lost. The board makes an effort to keep the testing as “uniform” as possible, Peterson said.
Pagano expects she could need to stop for 20 to 30 minutes every two hours — precious time that she believes should not be counted against her.
“It’s a very high-stress exam, and if you get up to (leave), you probably are really sacrificing your chances of passing,” she said.
According to Dr. Aloka Patel, a neonatologist at Rush University Medical Center, an infant eats every two to three hours, sometimes as often as every 90 minutes.
“If she is not pumping, the mother’s breasts would become engorged with milk, which is very painful and would impact her ability to concentrate,” said Patel, who does research in lactation. “We have to find ways to support these women — it’s important to change the mindset that this is unusual. Breast-feedingis what we should be doing for our society at large, for both child health and maternal health.”
Whether Pagano can succeed with a legal argument is another matter.
Adam Young, a Chicago-based attorney at Holland & Knight who handles discrimination cases, said protecting the rights of pregnant women is a developing area of the law and that state and federal agencies have taken “a very aggressive approach to enforcement with regard to perceived pregnancy discrimination.”
But Pagano faces a tough fight should this wind up in the courts, Young said.
The Illinois Human Rights Act provides three potential claims for women who believe they have been discriminated against because of a pregnancy, Young said. But Pagano could also fall short there, in part because the law speaks to protection from discrimination in a public place or the workplace; Pagano is not seeking employment with the board of admissions.
Under the Illinois Right to Breastfeed Act, a woman can breast-feed her baby in any location, public or private, but it doesn’t address the need to extract milk during a test, Young said.
Marcus, the national expert, also pointed to the shortcomings of another state law: the Illinois Nursing Mothers in the Workplace Act, which protects the right to required breaks. But there are no specifics about how to enforce the law, she said.
Marcus does think it’s possible to claim that for Pagano, and other women who have to sit for professional exams, the test-taking conditions are essentially a sex discrimination issue.
“One could argue she can’t be employed without taking the exam,” Marcus said.
It is not clear how many other women have raised similar issues at professional exams. Pagano said she was aware of two other instances in which women have prevailed. Marcus said a 2012 case in Massachusetts drew criticism from some who believed the accommodation went too far because it looked like a request for “special treatment.” Marcus disagreed.
“It’s not special. It’s different, and that’s OK,” Marcus said.
Pagano said if she does not receive the accommodation, she will likely sit for the test anyway. She said she needs to start working — and she risks losing her $1,200 registration fee. But she does think it’s an issue worth pursuing.
“I think it still needs to be challenged and addressed,” Pagano said. “There has to be more people out there in the same situation.”