Denial of Maternity Leave Based on Minimum Service Requirement Is Not Direct Evidence of Sex Discrimination

When No Employee is Eligible for Leave During First Year of Employment

McFee v. Nursing Care Mgt. of Am., Inc., Slip Opinion No. 2010-Ohio-2744.
Licking App. No. 08CA3000, 181 Ohio App.3d 632, 2009-Ohio-1107. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Pfeifer, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2744.pdf

(June 22, 2010) The Supreme Court of Ohio ruled today that where a company employment policy imposes a minimum length of service requirement before any employee is eligible for leave, and does not grant an exception from the minimum service requirement for maternity leave, that policy is not direct evidence of sex discrimination under the state’s civil rights statutes.

The Court’s 5-1 decision, authored by Justice Robert R. Cupp, reversed a ruling by the 5th District Court of Appeals.

The case involved nursing home worker Tiffany McFee, who applied for but was denied maternity leave after approximately eight months of employment at the Pataskala Oaks Care Center. At the time she was hired, McFee received an employee handbook stating that all company employees were required to complete one year of employment before they would be eligible for any leave of any kind. After missing work because of medical issues related to her pregnancy and subsequent childbirth, McFee was terminated from her position based on her absence from work without leave.

McFee filed a complaint with the Ohio Civil Rights Commission, claiming that her termination constituted unlawful sex discrimination on the basis of pregnancy. An administrative law judge recommended that the complaint be dismissed. Nevertheless, the Civil Rights Commission rejected that recommendation and found instead that Pataskala Oaks’ policy constituted unlawful sex discrimination. Pataskala Oaks appealed. On review, the Licking County Common Pleas Court held that Pataskala Oaks’ leave policy did not violate the antidiscrimination laws of Ohio and reversed the decision of the Civil Rights Commission.

OCRC then appealed the common pleas court’s ruling to the 5th District Court of Appeals, which reversed the trial court and reinstated McFee’s claim. The court of appeals held that the antidiscrimination laws of Ohio expressly require that employers provide employees with a reasonable period of maternity leave. Because Pataskala Oaks’ leave policy did not provide maternity leave for employees with less than one year of service, the court of appeals held that the policy violated the sex-discrimination laws. The court also held that the policy was direct evidence of discrimination and, therefore, McFee did not have the burden to offer other evidence of sex discrimination. Pataskala Oaks sought and was granted Supreme Court review of the 5th District’s ruling.

In today’s decision, Justice Cupp wrote: “R.C. 4112.02(A) provides that pregnant employees must be treated the same for employment-related purposes as employees who are not pregnant but who are similar in their ability or inability to work. ... The second sentence of R.C. 4112.01(B) directs that pregnant women ‘shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.’ ... The phrase ‘treated the same’ in R.C. 4112.01(B) ensures that pregnant employees will receive the same consideration as other employees ‘not so affected but similar in their ability or inability to work.’ Thus, the statute does not provide greater protections for pregnant employees than nonpregnant employees. Other courts that have considered this issue have also applied this interpretation of R.C. 4112.01(B). ... As stated by the Tenth District Court of Appeals (in Priest v. TFH-EB, Inc., 1998), ‘Ohio courts implicitly ... and expressly ... recognize that an employer need not accommodate pregnant women to the extent that such accommodation amounts to preferential treatment. Accordingly, to prevail on her pregnancy discrimination claim, plaintiff must show that defendant treated her differently because of her pregnancy.’”

“Pataskala Oaks’ length-of-service requirements treat all employees the same. Every employee must reach 12 months of employment before becoming eligible for leave. In this sense, the policy is ‘pregnancy-blind.’ ... Thus, a pregnant employee may be terminated for unauthorized absence just as any other employee who has not yet met the minimum-length-of-service requirement but takes leave based upon a similar inability to work. Unless there is other evidence of discrimination or pretext, R.C. Chapter 4112 does not prohibit termination of an employee affected by pregnancy under these circumstances. ... (A)n employer may maintain a uniform minimum-length-of-service leave policy consistent with Ohio law. Pataskala Oaks’ policy is ‘pregnancy-blind’ in that it does not treat employees affected by pregnancy differently from employees ‘not so affected but similar in their ability or inability to work.’ ... An 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. ... The parties agree that McFee was terminated because she took leave from work even though she was not eligible for leave under Pataskala Oaks’ policy. McFee has not alleged any other basis for a finding of discrimination, nor has she produced independent evidence that the proffered basis for the termination was a pretext for discrimination. Accordingly, McFee has failed to make a prima facie case of sex discrimination. The trial court properly dismissed the case.”

The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Judith Ann Lanzinger.

Justice Paul E. Pfeifer entered a dissenting opinion in which he wrote: “The facts of this case are such that an ordinary citizen would think, ‘There ought to be a law against that.’ Until today, there was. R.C. 4112.02(A) makes it unlawful for any employer ‘to discharge without just cause’ an employee because of his or her sex. R.C. 4112.01(B) makes clear that the prohibition in R.C. 4112.02(A) includes discrimination and discharge on the basis of pregnancy and pregnancy-related illness ... McFee provided a doctor’s note to Pataskala Oaks indicating that she had a pregnancy-related illness, pregnancy-related swelling, that rendered her unable to continue her job duties until six weeks after she gave birth. Pataskala Oaks says that it did not fire McFee because she was ill, but because she missed work because she was ill. What did the General Assembly mean when it protected women from discharge based upon pregnancy-related illness? Did it intend women not to treat their illness, but instead to go to work ill? That they should follow their doctor’s advice for bed rest by bringing their beds to their place of employment? Does not the word ‘illness’ connote missed work time?”

“The Civil Rights Commission was perfectly in line with R.C. 4112.01(B) when it promulgated Ohio Adm.Code 4112-5-05(G), establishing what constitutes pregnancy discrimination ... McFee is protected under Ohio Adm.Code 4112-5-05(G)(2): ‘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.’ Pursuant to the Pataskala Oaks employment policy, there was no maternity leave available to McFee. Therefore, her termination constituted direct evidence of unlawful sex discrimination.”

Justice Pfeifer concluded by noting the practicalities of the case: “It should be noted that McFee was not asking to be paid for her time off, and the law does not require her to be paid. The ironic postscript to this whole matter is that Pataskala Oaks called McFee three weeks after firing her and offered her a job. The burden of allowing McFee unpaid leave to deal with the medical effects of her pregnancy had turned out to be not such a burden. Now, as McFee’s child likely is graduating from kindergarten, Pataskala Oaks is finally emerging from litigation. It fought the statutorily mandated decency contained in R.C. 4112.01(B) and 4112.02(A) and won. Who is better for it?”

Chief Justice Eric Brown did not participate in the court’s deliberations or decision in this case.

Contacts
Benjamin C. Mizer, 614.466.8980, for the Ohio Civil Rights Commission.

Jan E. Hensel, 614.227.4267, for Nursing Care Mgt. of America d.b.a. Pataskala Oaks Care Center.

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