Warning: Unauthorized lactation can get you fired, moms.
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.