To underscore

Jill — Mon, 31 Aug 2009 08:29:24 -0700

Please read this excellent take-down in Salon.com of the decision and my post at The Moderate Voice that makes three critical points:

-we should help Totes torpedo its sales re: hospitals dole out those Totes to women in labor and delivery all the time - but there are plenty of other vendors

-the overriding health care perspective encourages women to breastfeed as long as possible for the health benefits to the children (and the mothers)

-our country continues to hold an embarrassingly poor ranking in the world on infant mortality; these kinds of decisions could make it even worse and demonstrate a total systemic failure in supporting women, families, children.

If this is what a pro-business all-GOP Ohio Supreme Court decision looks like in a state suffering as it is at the human level, I'll take the alternative any day.

proof

J-Dog — Fri, 28 Aug 2009 18:33:17 -0700

Just more proof that the Ohio Supreme Court is overrun by a bunch of boobs!

Importance of the High Court

ytownboy3 — Fri, 28 Aug 2009 07:51:54 -0700

ytownboy3 recalls history in pointing out the following: In the early 1980s, the Dems held the Ohio Supreme Court 6 to 1. Its opines were in favor of fairness and justice for working families, injured workers and constitutional protections of people's rights. That edge narrowed to 4-3 after 1984's elections and the pro Insurance Repub party took control after 1986. The rest, as they say, is history as people's rights have been trampled on as the high court has given the insurance industry and meddlesom employers/reckless docs anything they want. Credit former Justice Andy Douglas and current Justice Paul Pfeifer, both Rs, as the only voices of conscience during this ruthless assault on little people in favor of insurance and utility goons. Moral of story: the court should become a priority for Dems if we can retain the apportionment board. Pfeifer is obviously so right in his analysis of the issue and yet his colleagues have NO regard for the obvious......

Warning: Unauthorized lactation can get you fired, moms.

modernesquire — Thu, 27 Aug 2009 14:15:30 -0700

Today, the Ohio Supreme Court held that an employer may fire an employee for taking unauthorized breaks to pump breastmilk without violating Ohio's pregnancy discrimination laws in Allen v. totes/Isotoner Corp., 2009-Ohio-4231. According to the majority opinion written by Justice Stratton, because the Defendant admitted that she took breaks to pump breast milk without first seeking a supervisor's permission, the company was within its right to terminate her employment for "insubordination" because she failed to properly follow the proper procedures in taking those breaks. However, the majority decision refused to address the issue as to whether employment issues regarding lactation can even constitute as a basis of a pregnancy discrimination claim.

Justice O'Connor and Chief Justice Moyer concurred, but clarified that they believed that Ohio's pregnancy anti-discrimination laws do cover lactation. The trial court ruled against Allen by finding that lactation was not covered by Ohio's pregnancy anti-discrimination laws. It held:

“Allen gave birth over five months prior to her termination from [Isotoner]. Pregnant [women] who give birth and chose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination. See Derungs v. Wal-Mart Stores Inc., 374 F.3d 428, 439 (6th Cir. 2004).”

This is why I love reading legal opinions sometimes. It takes Justice O'Connor two pages and a medical reference guide to point out that the trial court and the 12th District Court of Appeals was wrong to rule that lactation is not linked to pregnancy.

Allen argued that because the company had a policy that allowed people to attend to other bodily functions without supervisor approval (i.e. bathroom breaks), the company could not be permitted to force her to only pump on her lunch break. Here O'Connor and Moyers disagreed finding that since Allen couldn't prove that other non-lactating employees do not routinely take scheduled 15-minute breaks to go to the bathroom, Allen could not prove she was being treated disparately on the basis of her need to tend to her lactation.

Ironically, the only opinion written by a male Justice was the dissent of Justice Pfeifer. Pfeifer faults the majority opinion because it overlooks that the employer has yet to explain how Allen's scheduled restroom breaks to pump milk were materially different from the unscheduled restroom breaks taken by its other employees. In other words, there was no evidence to suggest that Allen's breast pumping in the restroom took her away from her workstation any more than employees who went to use the restroom, so why would she need to get permission to go to the restroom to pump her breastmilk if the other employees were free to go without supervisor consent as much as they needed?

Ohio’s working mothers who endure the uncomfortable sacrifice of privacy that almost necessarily accompanies their attempt to remain on the job and nourish their children deserve to know whether
Ohio’s pregnancy-discrimination laws protect them.
I would hold in this case that employment discrimination due to lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation, and that LaNisa Allen deserves the opportunity—due to the state of the record—to prove her claim before a jury.

My prediction: this is the kind of issue that the General Assembly will "overturn" the Ohio Supreme Court with legislation. When the U.S. Sixth Circuit ruled that federal accommodations laws didn't require Wal0mart to tolerate breastfeeding near its restrooms, the Republican Senate quickly passed legislation requiring such accommodations under Ohio law. I'm not sure if that bill became law because the bill got mired in the House over breastmilk-related tort reform issues.

Buckeye State Blog - Warning: Unauthorized lactation can get you fired, moms. - Comments

To underscore

proof

Importance of the High Court

Warning: Unauthorized lactation can get you fired, moms.