This morning, the Ohio Supreme Court (in a 5-1 decision) held in a highly anticipated decision that the Ohio Revised Code does not require mandatory maternity leave. In particular, the Court held that an employment policy which imposes a uniform minimum-length-of-service requirement for leave eligibility with no exception for maternity leave cannot constitute direct evidence of sex discrimination under R.C. Chapter 4112. Thus, the fact that an employer relied upon a uniformly applied policy denying any leave of absence to any employee with less than one year of seniority could not constitute direct evidence of sex discrimination under Ohio law when that policy was used to deny maternity leave to an employee who gave birth eight months after being hired. McFee v. Nursing Care Mgt. of Am., Inc., Slip Opinion No. 2010-Ohio-2744. If the Court had held otherwise, the possibility existed that employers would refuse to hire pregnant or other women in order to avoid providing them with maternity leave.
According to the Court's opinion, a woman applied for employment in a nursing home in Pataskala and received an employee handbook upon being hired. The Handbook provided that employees would not be eligible for a leave of absence for any purpose until they had worked for at least one year. Eight months later, the woman's doctor provided a note saying that she was physically unable to work until after giving birth. Shortly thereafter, she gave birth and she was fired three days later for taking a leave of absence before she was eligible under the employer's policy. She filed a Charge of Discrimination with the Ohio Civil Rights Commission, where an investigator found probable cause of discrimination. An Administrative Law Judge disagreed and recommended dismissal of the complaint, but the OCRC disagreed and imposed liability. The employer appealed to the Licking County Common Pleas Court, which reversed the OCRC, which appealed. The Court of Appeals reversed again, finding that Ohio law required employers to provide all woman with a reasonable amount of maternity leave and that the employer's policy constituted direct evidence of discrimination (which relieved the woman of having to produce other evidence of sex or pregnancy discrimination). The employer again appealed and the Supreme Court reversed.
Ohio Revised Code § 4112.02(A) precludes employment discrimination on account of sex. Revised Code § 4112.01(B) provides in relevant part that:
the terms "because of sex" and "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related medical conditions. Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in division (B) of section 4111.17 of the Revised Code shall be interpreted to permit otherwise. This division shall not be construed to require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term or except where medical complications have arisen from the abortion, provided that nothing in this division precludes an employer from providing abortion benefits or otherwise affects bargaining agreements in regard to abortion.
First, the Court summarily rejected the appellate court's contention that the employer's policy could constitute "direct" evidence. Therefore, the employer was entitled to the McDonnell-Douglas burden shifting requirement of proving discriminatory intent and the opportunity to articulate a legitimate and non-discriminatory basis for its action.
Second, the Court found that it was not always illegal to discharge a pregnant employee. The statute simply required that pregnant employees not be fired without just cause or treated differently than other employees. "Thus, the statute does not provide greater protections for pregnant employees than nonpregnant employees." The Ohio statute mirrors the federal statute, which has generally been applied to not require preferential treatment for pregnant employees. In this case, the employer's policy was pregnancy-blind: it applied equally to all employees. "Thus, a pregnant employee may be terminated for unauthorized absence just as any other employee who has not yet met the minimum-length-of-service requirement but takes leave based upon a similar inability to work. Unless there is other evidence of discrimination or pretext, R.C. Chapter 4112 does not prohibit termination of an employee affected by pregnancy under these circumstances."
The Court rejected the OCRC's argument that the prohibition on discrimination "because of pregnancy" was separate from the "treated the same" requirement and required employers to provide maternity leave so that pregnant employees could not jobs to the same extent as non-pregnant employees because the United States Supreme Court had already earlier rejected that argument when interpreting the federal statute.
It would be contrary to this interpretation of the federal statute to hold that the first and second sentences of the state statute, which mirrors the federal statute, serve different purposes. Although the scope of the second sentence is narrower than that of the first sentence, both serve the same goal—to ensure that employees who are pregnant are not discriminated against on the basis of pregnancy. To hold otherwise would be to require that employers treat pregnant employees more favorably than other employees. The statutes do not support such a result.
The Court also refused to characterize the woman's termination as "because of pregnancy" when it was really "because of an unauthorized leave of absence." Only if she satisfied the McDonnell-Douglas burden of proof (or introduced other direct evidence of discrimination) would she be able to show that her termination was "because of pregnancy."
Finally, the Court chose to interpret the OCRC's Administrative Rule 4112-5-05(G) as consistent with the Court's interpretation of the Ohio Revised Code.
Ohio Adm. Code 4112-5-05(G)(2), the administrative regulation at issue, provides: "Where termination of employment of an employee who is temporarily disabled due to pregnancy or a related medical condition is caused by an employment policy under which insufficient or no maternity leave is available, such termination shall constitute unlawful sex discrimination."
Still later, however, OAC 4112-5-05(G)(5) provides:
Women shall not be penalized in their conditions of employment because they require time away from work on account of childbearing. When, under the employer's leave policy the female employee would qualify for leave, then childbearing must be considered by the employer to be a justification for leave of absence for female employees for a reasonable period of time. For example, if the female meets the equally applied minimum length of service requirements for leave time, she must be granted a reasonable leave on account of childbearing. Conditions applicable to her leave (other than its length) and to her return to employment shall be in accordance with the employer's leave policy." (emphasis added)
In light of these two apparently conflicting rules by the OCRC, the Court found the first rule to be ambiguous. If the Rule requires mandatory maternity leave even when similar leaves were not offered to other employees, then the Rule would require preferential treatment for pregnant employees in violation of the Ohio statute and, thus, would be unconstitutional. However, the Court found the Rule to be vague and ambiguous on this point and, thus, chose to harmonize it with the second part of the Rule and interpret it as being constituent with the Ohio statute. Without such an interpretation, the second part of the Rule would be rendered meaningless. According to the Court, the OCRC rule provides in effect that:
Ohio Adm. Code 4112-5-05(G)(2) must mean that when an employee is otherwise eligible for leave, the employer cannot lawfully terminate that employee for violating a policy that provides no leave or insufficient leave for temporary disability due to pregnancy or a related condition.
Because the woman offered no other proof of discrimination on account of sex or pregnancy, the Court affirmed the dismissal of her case by the trial court.
Justice Pfeifer dissented.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
