Lactose Intolerant?

The Ohio Supreme Court recently ruled that an employee terminated for taking unauthorized breaks to pump breast milk was not discriminated against by her employer on the basis of pregnancy when the former employee's deposition testimony revealed that the employer did not know the reason for her unauthorized breaks. Allen v. totes/Isotoner Corp., 2009-Ohio-4231, 2009 WL 2634592.

For approximately two weeks, LaNisa Allen had been taking breaks from her work station without her employer's knowledge or prior authorization. Her supervisor informed Ms. Allen that she was being terminated for her failure to "follow directions." Following her termination, Ms. Allen sued her employer for sex discrimination on the basis of pregnancy as prohibited by Ohio state law, because the reason she had been taking the breaks was to pump breast milk. The trial court granted the employer's motion for summary judgment, finding that discrimination on the basis of lactation is not the same as discrimination on the basis of pregnancy because the condition of lactating is not a condition relating to pregnancy but rather a condition relating to breastfeeding. The Twelfth District Court of Appeals affirmed the decision on appeal, but instead, based its decision on the fact that Ms. Allen was terminated plainly and simply for taking an unauthorized break. Ms. Allen appealed.

The Ohio Supreme Court accepted Ms. Allen's discretionary appeal to decide whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. Chapter 4112. However, the Court decided not to reach this issue because it found that the employer's legitimate, nondiscriminatory reason for Ms. Allen's termination caused her claim to fail. This was due to Ms. Allen's failure to produce evidence from which a jury could conclude that her employer's legitimate, nondiscriminatory reason for the termination was a pretext for discrimination based on Ms. Allen's pregnancy or a condition related to her pregnancy.

Although Justice Maureen O'Conner agreed with the Court's holding, she wrote a lengthy separate opinion to state that she would hold that lactation is protected by Ohio's discrimination statute and that the statute prohibits employment discrimination against lactating women. Justice Paul Pfeifer, the only dissenting Justice from the Court's per curiam opinion, took it one step further in writing that he would hold that not only are lactation activities protected under Ohio's sex discrimination law, but that a "clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation."

Unfortunately, the implication of this case for Ohio employers is clear as mud. Here, the combination of Ms. Allen's failure to request a lactation accommodation, along with her employer's lack of knowledge as to the reasons for Ms. Allen's unauthorized breaks, ultimately prevented a finding of liability. Had Ms. Allen produced some evidence that her lactation was the true motivation for her termination, the outcome may have been different. Instead, the Ohio Supreme Court stopped short of deciding whether lactation discrimination is prohibited. This issue will likely resurface, and if the viewpoints of Justices O'Conner and Pfeifer foreshadow what is to come, protection may extend to lactating employees, requiring employers to provide a lactation accommodation.

Author: Ann Eberts

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