By Lois A. Gruhin
In a long-awaited decision, the Ohio Supreme Court rejected the Ohio
Civil Rights Commission’s (“OCRC”) attempt to require all employers with
four or more employees to provide reasonable pregnancy and/or maternity
leave regardless of the employee’s length of service. In McFee v. Nursing Care Management of America, Inc.,
2010-Ohio-2744 (June 22, 2010), the Court held that, “[a]n employment
policy that imposes a uniform minimum-length-of-service requirement for
leave eligibility with no exception for maternity leave is not direct
evidence of sex discrimination under R.C. Chapter 4112.”
Eight months into her employment, the plaintiff presented a doctor’s
statement, indicating that the plaintiff could not work due to a
pregnancy-related condition. The employer’s leave of absence policy
contained a no-exception, minimum twelve-month employment eligibility
requirement. The plaintiff left work, and the employer terminated her
employment for taking an unauthorized leave. The plaintiff filed a
discrimination charge with the OCRC, which ruled that the denial of
pregnancy leave constituted gender discrimination. The common pleas
court reversed the OCRC, but the Fifth District Court of Appeals
reversed the common pleas court.
At issue were a statutory provision in R.C. Chapter 4112 and two
provisions in an OCRC administrative regulation. R.C. Section
4112.02(B) requires that employers treat pregnant employees the same for
employment purposes as employees who are not pregnant, and therefore,
prohibits an employee’s discharge because of pregnancy or related
condition. O.A.C. Rule 4112-5-05(G)(2) provides that, “[w]here
termination of employment of an employee who is temporarily disabled due
to pregnancy or related condition is caused by an employment policy
under which insufficient or no maternity leave is available, such
termination shall constitute unlawful sex discrimination.” O.A.C. Rule
4112-5-05(G)(5) provides that women shall not be penalized in the
conditions of their employment when they take time off for childbearing,
if they are eligible to do so.
The Court first held that R.C. Chapter 4112 does not prohibit uniformly
applied minimum-length-of-service requirements. The statutory
requirement that pregnant employees be “treated the same” as
non-pregnant employees “does not provide greater protections for
pregnant employees than non-pregnant employees.” Since the employer’s
length-of-service requirement treated all employees the same, the policy
is “pregnancy blind.”
The Court then rejected the OCRC’s interpretation of its own
administrative regulation. Harmonizing Rule 4112-5-05(G)(2) and (G)(5),
the Court held that (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 due to temporary
disability due to pregnancy or a related condition.” (emphasis in
original)
Finally, the Court held that the plaintiff could not prove gender
discrimination in her termination. The parties agreed that the employer
terminated the plaintiff’s employment because she took leave from work
even though she was not eligible for it, and not because she had become
pregnant.
This decision provides two important directives to Ohio employers. R.C.
Chapter 4112 does not require employers to provide pregnancy/maternity
leave when it provides no other leave or to waive or ignore
minimum-length-of-service eligibility requirements for obtaining a leave
of absence when an employee requests pregnancy/maternity leave.
However, if an employer provides leave benefits and an employee meets
all eligibility requirements (including length-of-service requirements),
the employer must extend the leave benefits to include pregnancy/
maternity leave and cannot terminate an employee for attempting to take
pregnancy/maternity leave under that policy.
In light of this decision, an employer should consult with legal counsel
and review its leave of absence policies to ensure that such policies
comply with Ohio’s anti-discrimination laws.
