By Lois A. Gruhin
The Fifth Appellate District recently held in Nursing Care Mgt. of Am., Inc. v. Ohio Civ. Rights Comm.,
2009-Ohio-1107, that an employer violated R.C. 4112.02 by denying leave
to a pregnant female employee who had not satisfied the employer’s 12
month length of service requirement.
The employer had a facially-neutral leave policy that provided
12 weeks of available leave, but required one-year of service before any
employee was entitled to it. The plaintiff/employee had given her
employer a doctor's note placing her off work for 6 weeks due to
pregnancy, approximately a week before her due date. Three days after
she had given birth, and about 10 days after submitting the doctor's
note, the employer discharged her because she had not worked for a full
year, as required under the employer’s policy.
The OCRC found probable cause for pregnancy discrimination
based on O.A.C. 4112-5-05(G)(2). (G)(2) makes it unlawful sex
discrimination to discharge an employee "who is temporarily disabled due
to pregnancy" and that discharge "is caused by an employment policy
under which insufficient or no maternity leave is available."
The employer argued that these regulations went beyond what was
provided for by existing interpretations of the federal Pregnancy
Discrimination Act (PDA), and that the Ohio Supreme Court had directed
Ohio courts to apply federal interpretations of the PDA. The employer
also argued that its act was justified under subdivision (G)(5), which
permits enforcement of "length of service" requirements under certain
circumstances.
The Fifth District held that while Ohio courts were indeed to
apply federal interpretations of Title VII where the language of the
Ohio act is comparable, Title VII and the PDA were not preemptive
ceilings, and the Ohio act was not necessary equivalent to the federal
act, but only "similar to" it. Specifically, the court cited the U.S.
Supreme Court's opinion in California Fed. Sav. & Loan Assn. v. Guerra
(1987), 479 U.S. 272, which held that "Title VII does not preempt a
state law that guarantees pregnant women a certain number of pregnancy
disability leave days, because this is neither inconsistent with nor
unlawful under Title VII." The court pointed out that that R.C. 4112.08
also requires that R.C. Chapter 4112 "shall be construed liberally for
the accomplishment of its purpose." In the end, the court determined
that O.A.C. 4112-5-05(G)(2) trumps (G)(5), and that maternity leave must
be provided for a “reasonable period of time.”
This illustrates that under Ohio Law employers who fail to
provide all pregnant employees a reasonable amount of maternity leave
regardless of the employers leave policy do so at their own peril. The
issue is what constitutes a “reasonable period of time” for
pregnancy/maternity leave. The Ohio Civil Rights Commission has taken
the position in its technical policy T-29 that a leave policy providing a
minimum of at least 12 weeks of pregnancy/maternity leave for women
affected by pregnancy, childbirth or a related medical leave, that is
applied regardless of length of service, is presumed to be reasonable
and sufficient. However, the reasonableness and sufficiency of a leave
policy may be rebutted based on the past practices of the employer, the
employer’s business necessity, the type of work involved and other
relevant factors. Remember that in some instances due to medical
necessity, a reasonable period of leave could require more than a 12
week leave period.
The Court’s opinion appears to lay the groundwork for the OCRC
to use R.C. 4112.08 (which has no federal counterpart) as the basis for
distinguishing R.C. Chapter 4112 from federal Title VII/ADA/ADEA law,
and issue regulations that carry employers' obligations under R.C.
Chapter 4112 far beyond anything required by federal law – all without
any action by the General Assembly.
