On August 27, 2009, the Supreme Court of Ohio decided the case of Allen v. Totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio- 4231. The issue before the Supreme Court of Ohio was “whether Ohio law prohibits an employer from discriminating against a female employee because of or on the basis of lactation.”
The trial court had granted summary judgment to the employer finding that “[b]reastfeeding discrimination does not constitute gender discrimination.” The appellate court affirmed the trial court’s decision finding that the employee failed to establish a prima facie case of gender discrimination and that the employee was terminated for legitimate nondiscriminatory reasons, i.e. taking unauthorized breaks albeit to pump milk.
In a brief six paragraph opinion, the per curiam opinion affirmed the appellate court’s decision but refused to address the issue before it. Rather, the per curiam opinion glossed over whether lactation resulting from pregnancy was sufficient to demonstrate a prima facie case of gender discrimination and simply held that the taking of unauthorized breaks regardless of the reason constitutes a legitimate nondiscriminatory reason for termination.
Because the per curiam opinion did not “reach the issue whether alleged discrimination due to lactation is included within the scope of Ohio employment-discrimination statute,” the issue still remains unsettled. The concurring opinion of Justice O’Connor which was joined by Chief Justice Moyer, however, is enlightening on this issue.
Justice O’Connor unequivocally stated that Ohio’s anti-discrimination “statute prohibits employment discrimination against lactating women” and that an employee could establish a prima facie claim of gender discrimination by showing she was affected by pregnancy, such as by lactating. Justice O’Connor reasoned that Ohio’s anti- discrimination statute affords protection to employees because of or on the basis of pregnancy and mandates equal treatment to women affected by pregnancy, childbirth, or related medical conditions. Because of the “physiological aspects of lactation, [Justice O’Connor would] have little trouble concluding that lactation ... has a clear, undeniable nexus with pregnancy and childbirth.” Justice O’Connor, therefore, would find that lactation was because of or on the basis of pregnancy and that women who are lactating are affected by pregnancy or childbirth.
Justice O’Connor ultimately concurred in the judgment because the employee took breaks without the authorization of her employer even though such breaks “may have been to pump milk” and because the employee failed to demonstrate that other employees who were not pregnant were routinely permitted to take similar unauthorized breaks. Thus, Justice O’Connor determined that the employer possessed a legitimate nondiscriminatory reason for terminating the employee.
Justice Pfeifer, in a dissenting opinion, reiterated Justice O’Connor’s concurring opinion “that employment discrimination due to lactation is unlawful” under Ohio anti- discrimination statutes. Thus, although the per curiam opinion refused to address the issue, three of the justices affirmatively stated that they would afford lactating women protection under Ohio law.
We think the better reasoning to follow, both from a practical and legal standpoint is that expressed by Justices O’Connor and Pfeifer. That is, it would be a better practice to treat any such conditions as if the existence of the post-pregnancy condition provided the employee protection from adverse employment action based upon such conditions. By taking such an approach and in applying a uniform policy to all employees, an employer will be promoting the best interests of its employees while providing itself protection from this seemingly unsettled issue.
If you would like a copy of the full opinion or if you have any other questions regarding Employment Practices Liability, feel free to contact one of our Employment Practices Liability Practice Group Attorneys.