Ohio Supreme Court to Working Women: Lactate At Home Where You Belong

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Every time my hometown Cincinnati, Ohio makes it into the national news, the headlines make me cringe. Race riots, banning contemporary art exhibits — when Cincinnati is concerned, no news is usually good news.

But Ohio couldn’t let Labor Day pass without doing it up right.

On Aug. 27, the Ohio Supreme Court decided that firing a new mother for taking a few minutes to pump breast milk does not constitute gender discrimination.

Yes, you read that right folks. Lactation discrimination isn’t gender discrimination. At least not in Ohio.

Ok, that’s not exactly what the court said, but it concurred with the fired mother’s employer.

LaNisa Allen was working at the Totes/Isotoner corporation in Cincinnati, Ohio when, over a period of two weeks, she took short unauthorized work breaks to pump breast milk. Employees at the same company routinely take bathroom breaks without asking permission. After she was terminated for failure to “follow directions,” Allen sued her former employer for discrimination.

In its verdict in favor of Totes/Isotoner, the trial court found that:

“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.”

The Supreme Court didn’t even get that far. According to the opinion, the burden was on Allen to prove she was treated differently than employees who took restroom breaks for more traditional purposes. Because she did not, the justices writing for the majority refused to address the larger issue of whether lactation discrimination constitutes gender discrimination.

Justice Evelyn Lundberg Stratton (that’s right, a woman), with two concurring justices, wrote:

“This court does not reach the issue of whether alleged discrimination due to lactation is included within the scope of Ohio’s employment-discrimination statute.”

Two more justices concurred with the outcome of Allen’s case, but thought the court should have weighed in on the issue of lactation discrimination in a broader sense. Justice Maureen O’Connor wrote the opinion for that duo, saying:

“The lead opinion’s failure to address the legal framework in which this case arises is disappointing… the question of whether Ohio law recognizes discrimination claims based on lactation is of great general interest.”

But even O’Connor eventually says that pregnancy and pregnancy-related conditions must be treated with neutrality, not preferentially. And that unless Allen could prove employees routinely took 15-minute breaks for other purposes, she could not claim she was treated differently. Likewise, O’Connor finds lactation would not be a considered a disability in a disability discrimination case.

Interestingly, the most scathing dissent came from Justice Paul Pfeifer, not from one of the three women on the court.

“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.”

But the precedent in Ohio is now that you don’t need to worry about losing your job for having children, just for feeding them.