A gender discrimination case recently tried before the Supreme Court of Ohio, involving employment policies with minimum length of service requirements could have a significant impact on working women taking time off for pregnancy in the future.
This case is McFee; Ohio Civil Rights Commission, vs. Nursing Care Management of America, Inc., D.B.A. Pataskala Oaks Care Center
The Ohio Supreme Court found that “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.”
Ohio law prohibits an employer from discharging an employee because of his or her sex. The statute makes it unlawful to discharge an employee on the basis of pregnancy or a pregnancy related illness. In the past, this law has protected women’s rights against unlawful sex discrimination where employment policies have offered insufficient or no maternity leave. In this case, Tiffany McFee’s employer had an established written policy in which no exception was made for pregnancy related conditions. The policy required all employees to complete 12-months of employment before leave of any type could be taken. Only after completing the required period of employment could employees be considered eligible for 12-weeks of unpaid leave for pregnancy or other needs.
McFee was employed by Nursing Care Management of America, Inc.; d.b.a. Pataskala Oaks Care Center (Pataskala Oaks) for approximately eight months when she presented her employer with a note from her doctor stating that she couldn’t work due to conditions related to her pregnancy. She applied for maternity leave at that time and was denied on the basis that she had not completed the required minimum length of service to be eligible for leave under Pataskala Oaks written employment policy. Shortly after the birth of her child, Pataskala Oaks terminated McFee based on her absence from work without leave. McFee then filed charges with the Ohio Civil Rights Commission, claiming that her firing constituted unlawful sex discrimination on the basis of her pregnancy.
The Ohio Civil Rights Commission determined that the Pataskala Oaks’ policy constituted unlawful sex discrimination, but only after rejecting an administrative law judge recommendation that the charge be dismissed. When Pataskala Oaks appealed the decision, the Licking County Common Pleas Court reversed the Ohio Civil Rights Commission determination, finding instead that antidiscrimination laws were not violated. McFee then appealed the Licking County Common Pleas Court which was then brought before the Fifth District Court of Appeals. Handing down another reversal, the appeals court indicated that their decision was based on Ohio antidiscrimination laws which expressly require employers to provide employees with a reasonable period of maternity leave. Finding that Pataskala Oaks’ leave policy did not provide maternity leave for employees with less than one year of service, the court held that the policy did indeed violate sex-discrimination laws within the state of Ohio. Since the policy was found to be direct evidence of discrimination, McFee did not have the burden to offer other evidence of sex discrimination as required in cases where no evidence of discrimination exists. This ruling pressed Pataskala Oaks to appeal yet again.
Supreme Court judges were asked to bring some finality to the determination of whether McFee’s termination for violation of the established Pataskala Oaks uniform leave policy was direct evidence of sex discrimination under the law. In presenting its case, Pataskala Oaks asserted that (1) an employer’s uniform minimum-length-of-service leave policy should not constitute direct evidence of a sex-discrimination violation, even when applied to employees who require leave for reasons related to pregnancy, (2) interpretation of the laws in question should not be interpreted to mandate maternity leave for employees who are not otherwise eligible for any leave, and (3) the case burden-shifting framework applied by the Fifth District Court of Appeals should be applied only to cases alleging sex discrimination on the basis of pregnancy leave, thus requiring McFee to offer evidence of discriminatory on her claim which is based on an employment policy which should be considered nondiscriminatory on its face.
The Supreme Court found no evidence of direct sex discrimination. The wording of the Ohio pregnancy-discrimination statute was found to mirror the federal law, down to the phrase “treated the same.” This phrase ensures that pregnant employees will receive the same consideration as other employees, without providing greater protection. Federal courts, as well as Ohio courts, have agreed that “the Pregnancy Discrimination Act does not require preferential treatment for pregnant employees. Rather it mandates that employers treat pregnant employees the same as non-pregnant employees who are similarly situated with respect to their ability to work.” The court here determined that McFee was fired due to her taking unauthorized leave, instead of being fired on the basis of her pregnancy, which is prohibited. The court did not find that the law imposes a “per se ban” on termination of every employee affected by pregnancy. Had McFee presented her case as if she believed that the leave policy was merely a pretext for her termination, she could have asserted her claim under existing antidiscrimination framework, but she did not.
The court interpreted the law to 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 for temporary disability due to pregnancy or a related condition.”
Addressing Pataskala Oaks third, and final, assertion of burden-shifting, the court found that employers may maintain uniform minimum-length-of-service policies consistent with Ohio law. Since Pataskala Oaks employment policy was found to be “pregnancy-blind, in that it doesn’t treat employees affected by pregnancy differently from employees not so affected, but similar in their ability or inability to work,” no direct evidence of sex discrimination was found. Without the required evidence of discrimination, McFee failed to make a “prima facie case” of sex discrimination.
The dissenting judge, Justice Pfeifer, concluded: “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 the 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 statutorily mandated decency … and won. Who is better for it?”