Client Alert from the Labor and Employment Group - August 2009
BREAST-FEEDING MOMS HAVE TO FOLLOW THE RULES
AT WORK.
by Michael Schmeltzer
In a recent decision, the Ohio Supreme Court avoided the issue of whether Ohio law prohibits an employer from discriminating against an employee because she is lactating. Instead, the Court held that the employer did not discriminate against a new mother when it terminated her because she "failed to follow directions" by taking extra, unauthorized breaks to pump breast milk. The Court found that there was no evidence, under the particular facts of the case before it, that this legitimate, nondiscriminatory reason for the employees termination was a pretext for discrimination. Allen v. Totes/Isotoner Corp., Slip Opinion No. 2009-Ohio-4231.
While Justices Stratton, O'Donnell, and Cupp refused to address the issue of whether lactation discrimination is actionable under Ohio law, Justice O'Conner - joined by Chief Justice Moyer - published a lengthy concurrence that addressed the question. Justice O'Conner found that lactation is covered by Ohio's prohibition against employment discrimination on the basis of sex/pregnancy. But because Allen failed to obtain her employer's permission before taking her breaks, her claims failed. Justice O'Conner wrote:
Although Allen's unauthorized breaks may have been to pump milk, Allen could not properly engage in such actions without her employer's knowledge and permission. The [laws] mandate that an employer treat pregnancy with neutrality, but not preferentially.
Justice Pfeifer, dissenting, agreed that employment discrimination due to lactation is unlawful. Justice Lanzinger would have dismissed the appeal as having been improvidently accepted.
Even though the six- to- one opinion was for the employer, three of the Justices reached the ultimate issue and concluded that Ohio law prohibits an employer from discriminating against an employee because she is lactating. While this is not binding authority, it signals that if the opportunity arises, a majority of Court will likely find that the definition of sex discrimination covers lactation. Therefore, employers should not view this case as authority to deny breaks to lactating employees or as permitting them to institute a policy totally prohibiting breast pumping or breast-feeding at work. But employers can expect their breast-feeding employees to follow the rules.
Before deciding to terminate a lactating employee even for taking unscheduled breaks, employers should consider whether they permit other employees to take unscheduled breaks and, if so, for what reasons. A neutral and consistent disciplinary policy should be implemented. Where such a policy exists, employers should feel confident when terminating an insubordinate employee who takes unauthorized breaks to pump breast milk without the employer's knowledge or consent. Likewise, employers may require their pregnant and breast-feeding employees to follow other rules generally applicable to all employees unless a pregnancy-related disability requires a reasonable accommodation.
The information in this Client Alert is a summary of often complex legal issues and may not cover all of the "fine points" of a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney. |
