Ohio’s anti-discrimination law, the Ohio Civil Rights Act, prohibits employers in Ohio from discriminating against it employees “because of sex”, among other things. “Because of sex” is defined to include pregnancy and any illness arising out of and occurring during the course of pregnancy, childbirth, or related medical conditions. These provisions of the Act are similar to the federal Pregnancy Discrimination Act (“PDA”) provision of Title VII.
In Nursing Care Mgmt. of Am. v. OCRC, 2009-Ohio-1107 (Ohio App. 5th Dist. 2009), Tiffany McFee’s employment was terminated by Nursing Care Management of America, d/b/a Pataskala Oaks, when she presented her employer a physician’s note stating that she was unable to work due to a pregnancy-related medical condition. Because she had been employed by the company for less than one year (eight months), McFee did not qualify for leave under the company’s leave policy.
Pataskala Oaks’ leave policy was maintained in accordance with the federal Family Medical Leave Act, providing no leave until after one year of service and allowing 12 weeks of leave thereafter. Under the policy, employees who did not meet the one-year service requirement were denied leave. If the employee required leave which was not available, he or she was terminated, but remained eligible to re-apply for employment once able to resume work. Accordingly, McFee was terminated.
Following her termination, McFee filed a charge of discrimination with the Ohio Civil Rights Commission (“OCRC”). The OCRC found Pataskala Oaks violated Ohio’s anti-discrimination law, Ohio Revised Code § 4112. The Administrative Law Judge (“ALJ”) who heard the complaint recommended that it be dismissed. However, the Commission rejected the ALJ’s position and held that the termination of McFee’s employment due to her need for maternity leave violated Ohio’s laws against pregnancy discrimination.
On appeal, the Licking County Common Pleas Court reversed the Commission. The case was then appealed to the Fifth Appellate District, which found that McFee had presented direct evidence of pregnancy discrimination and upheld the Commission’s decision.
The appellate court relied heavily upon the prohibition against discrimination in the Ohio administrative regulations, specifically Ohio Adm. Code § 4112-05-05(G)(2). The regulation 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.” According to the Court, because McFee had no maternity leave available to her at the time of her pregnancy disability, the termination for taking pregnancy-related leave explicitly violated the regulation.
The appellate court found that the goals of the PDA and the Ohio law are to ensure that women will not lose their jobs on account of pregnancy disability and that female workers are not put in the position of choosing between their job and the continuation of their pregnancies, “a dilemma which would never face a male employee in the first year of employment at Pataskala Oaks.” The Court further stated: “Both sexes are entitled to have a family without losing their jobs, to hold otherwise would be to completely ignore the plain language of Ohio Adm. Code 4112-5-05(G)(2).”
On April 24, 2009, Pataskala Oaks appealed the decision to the Ohio Supreme Court. The Ohio Health Care Association filed an amicus curiae or friend-of-the-court brief in support of jurisdiction on behalf of Pataskala Oaks. As of the publication of this article, the Ohio Supreme Court has not yet accepted jurisdiction.
Ohio employers are reminded that the Ohio Civil Rights Commission, and now the Fifth Appellate District, takes the position that all employees, regardless of length of service or the employer’s internal leave policies, are entitled to reasonable pregnancy-related or maternity leave. Therefore, an employer’s application of its leave policy to a pregnancy-related leave based upon an employee’s length of service carries the risk of liability. Please contact us with your questions about this case, leave policies and other workplace issues.