Ohio Supreme Court Rejects Ohio Civil Rights Commission’s Interpretation on Mandatory Pregnancy/Maternity Leave
*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.

*Lois Gruhin, a member of the firm’s Columbus office, is a former General Counsel for Schottenstein Stores Corporation and has extensive experience in leave law and all other aspects of employment law. For more information about leave law or any other employment matter, please contact Lois at 614.224.4411 or lag@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at 216.696.4441.
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