In a case originally accepted to seek a review of whether Ohio law prohibits an employer from discriminating against a female employee because, or on the basis of , a new mother's lactation, the Ohio Supreme Court last Thursday none-the-less upheld its appeals court decision that the woman "was simply and plainly terminated as an employee at will for taking an unauthorized, extra break."
"The record as it was developed in the trial court," the per curiam decision said, "fails to provide a basis from which a jury could conclude that the woman’s employer's articulated legitimate, nondiscriminatory reason for her termination—failure to follow directions—was a pretext for discrimination based on her pregnancy or a condition related to her pregnancy. This determination defeats a sex-discrimination claim under R.C. 4112.02 as a matter of law… Consequently, this court does not reach the issue of whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. 4112.02, as sex discrimination under R.C. 4112.01(B)," Judge Terrence O’Donnell adding in concurrence that "it is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly in issue."
The decision wasn't that "cut-and-dry," however, with two of the panel's judges concurring "in judgment only," and a third dissenting.
Judge Maureen O'Connor wrote, "I agree that appellee failed to develop a record from which a jury could find in her favor. But because the trial and appellate courts erroneously applied inapposite federal precedent in their analysis of her claims, I believe that this court should reach the merits to clarify the law… (and) write separately to set forth why I would hold that lactation falls within the scope of R.C. 4112.01(B) and that the statute prohibits employment discrimination against lactating women. R.C. 4112.02… The lead opinion's failure to address the legal framework in which this case arises is disappointing, and it is even more troubling that we fail to address the scope of Ohio law under the guise that reaching the merits would result in an advisory opinion."
Similarly, Judge Paul Pfeifer, dissenting, wrote "This is the Supreme Court, and when the opportunity arises, we should answer the questions that Ohioans need answered. In this case, we are asked whether breastfeeding mothers can be fired from their jobs for pumping their breasts in the workplace. That is, in its protection of pregnant workers in R.C. 4112.01(B), did the General Assembly include protection of women who are dealing with the aftereffects of their pregnancy? The lead opinion dodges the opportunity to provide an answer."