On June 22, 2010, the Ohio Supreme Court issued its decision in
McFee v. Nursing Care Management of America, Inc. dba Pataskala
Oaks Care Center. In that decision, the Court held that Ohio
law does not prohibit minimum length of service requirements for
maternity leave, and does not require preferential treatment of
pregnant employees who do not qualify for leave under the
employer's leave policies.
The case arose out of the termination of Tiffany McFee, a nurse at
Pataskala Oaks Care Center ("Pataskala Oaks"). At the
time of Ms. McFee's hire in June of 2003, Pataskala Oaks had a
leave policy modeled after the federal Family and Medical Leave Act
that permitted 12 weeks of leave for employees who had been
employed for a minimum of one year. Approximately eight months into
her employment, Ms. McFee requested leave for a pregnancy-related
condition. Ms. McFee was ineligible for leave under Pataskala
Oaks' leave policy because she had not worked at the facility
for 12 months. Because McFee took an unapproved leave, her
employment was terminated due to absence.
Approximately four weeks after the birth of her child, Pataskala
Oaks' DON called Ms. McFee and left her a message informing her
that a full-time day shift position was available at Pataskala Oaks
and requested Ms. McFee to contact her if interested. Instead of
returning Pataskala Oaks' call, Ms. McFee filed a charge of
pregnancy discrimination with the Ohio Civil Rights Commission
("OCRC").
After investigation, the OCRC found that Pataskala Oaks' policy
violated Ohio's prohibition against pregnancy discrimination.
The case proceeded to a hearing (upon stipulation) before an
Administrative Law Judge ("ALJ"). The ALJ found that the
OCRC failed to establish a prima facie case of
discrimination and recommended that it dismiss its Complaint
against Pataskala Oaks. The OCRC rejected that recommendation and
found that Pataskala Oaks' policy constituted unlawful sex
discrimination.
Pataskala Oaks appealed. On review, the Licking County Common Pleas
Court found that Pataskala Oaks applied its leave policy
consistently to all employees and Ms. McFee was fired because she
did not qualify for leave. Therefore, the OCRC failed to establish
a prima facie case of discrimination. Further, the Court
found that even if a prima facie case could be
established, Pataskala Oaks had a legitimate business reason for
the termination -- its consistently-applied leave policy -- and
there were no allegations that the policy was a pretext for
discrimination. The Court held that Pataskala Oaks' leave
policy did not violate the antidiscrimination laws of Ohio and
reversed the decision of the Civil Rights Commission.
On further appeal, the Fifth District Court of Appeals reversed the
judgment of the Common Pleas Court. 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
pregnancy-discrimination law. 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 discrimination.
Pataskala Oaks sought review before the Ohio Supreme Court. On
appeal, Pataskala Oaks argued:
- an employer's uniform length of service leave policy does not constitute direct evidence of sex discrimination, even when it is applied to employees who require leave for reasons related to pregnancy;
- Ohio Revised Code Chapter 4112 is an anti-discrimination statute and cannot be interpreted as a mandatory leave statute; therefore, the regulations enacted to implement Ohio's pregnancy discrimination law cannot be interpreted to mandate maternity leave for employees who are not otherwise eligible;
- if the regulation is interpreted as requiring mandatory leave, it exceeds the statutory grant of authority to the OCRC and is thus unconstitutional; and
- the McDonnell Douglas burden-shifting framework applies in cases alleging sex discrimination on the basis of pregnancy leave, thus requiring the claimant to offer evidence of discriminatory intent if a claim is based on an employment policy that is non-discriminatory on its face.
The regulation enacted by the OCRC to implement the Ohio
pregnancy discrimination statutes, Ohio Rev. Code §§
4112.01(B) and 4112.02(A), was at the core of the controversy.
Located at Ohio Adm. Code 4112-5-05, the regulation contains
provisions that, on their face, appear to be conflicting. In
pertinent part, the regulation provides:
(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 policy
constitutes unlawful discrimination.
(G)(5) Women shall not be penalized in their conditions of
employment because they require time away from work on account of
childbearing. When, under the employer's leave policy the
female employee would qualify for leave, then childbearing must be
considered by the employer to be a justification for leave of
absence for female employees for a reasonable length of time. For
example, if the female meets the equally-applied minimum length of
service requirements for leave time, she must be granted a
reasonable leave on account of childbearing...
(G)(6) Notwithstanding paragraphs (G)(1), (G)(2), and (G)(5), if
the employer has no leave policy, childbearing must be considered
by the employer to be a justification for leave of absence for a
female employee for a reasonable period of time. Following
childbirth, and upon signifying her intent to return within a
reasonable time, such female employees shall be reinstated to her
original position or to a position of like status and pay, without
loss of service credits.
The OCRC argued that (G)(5) did not apply because (G)(2), the only
section that specifically addressed "termination" was
more specific and therefore controlled. Furthermore, the OCRC
argued that because the policy at issue made no maternity leave
available to McFee, it was in violation of the regulation and
constituted direct evidence of discrimination. The OCRC further
argued that because the statute prohibits terminations
"because of" pregnancy, and because time away from work
is necessary for a woman to give birth and recover, then the
statute itself provides for maternity leave and the regulation must
be read in accordance with the statute. Finally, the OCRC argued
that reading (G)(5) as permitting minimum length of service
requirements would invalidate Section (G)(2); because the Court had
an obligation to harmonize the conflicting provisions of the
regulation if possible, the Court must conclude that the
regulation, as a whole, mandates reasonable maternity leave for all
employees who require it.
Rejecting the OCRC's argument, the Ohio Supreme Court
recognized that the Ohio pregnancy discrimination statutes direct
that pregnant employees be treated "the same for all
employment-related purposes as other persons not so affected but
similar in their ability or inability to work." Thus, the
statutes do not provide greater protection for pregnant employees
than for non-pregnant employees.
The Court held that if the regulation required preferential
treatment of pregnant employees as compared to other employees who
are not pregnant but similar in their ability or inability to work,
it would unconstitutionally expand the public policy set by the
legislature in the statute. Resolving the apparent tension between
subsections (G)(2) and (G)(5) of the administrative code provision,
the Court held that Ohio Adm. Code 4112-5-05(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 for temporary
disability due to pregnancy or a related condition. Therefore, the
Court also held that an employment policy that imposes a uniform
minimum length of service requirement with no exception for
maternity leave is not direct evidence of discrimination, and the
McDonnell-Douglas analysis should be applied in cases
involving such a policy.
The decision is an important one for Ohio employers. The Ohio
statutes prohibiting discrimination provide 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. Most Ohio courts that had previously decided the
issue, as well as federal courts interpreting the federal Pregnancy
Discrimination Act have ruled that this statutory language means
that if an employer has a leave policy that places conditions upon
eligibility for leave, such as a minimum length of service
requirement, that policy does not violate the prohibition against
pregnancy discrimination so long as it is uniformly applied. In
other words, even if a pregnant employee loses her job because she
is not eligible for leave, it does not constitute pregnancy
discrimination because she is treated the same as all other
employees who are temporarily disabled from working.
The OCRC, on the other hand, has taken the position that employees
who need leave for child birth or pregnancy -related conditions
must be given as much leave as they need, and failure to provide
such leave, regardless of the employee's eligibility under the
employer's leave policy, constitutes pregnancy discrimination.
This interpretation of the law had the effect of turning an
anti-discrimination statute into a mandatory, indefinite leave law
for pregnant employees. Many employers found themselves unwittingly
liable on a pregnancy discrimination charge by applying their
uniform leave policy -- oftentimes modeled after the FMLA -- to
pregnant employees who were not eligible for leave or who had
exceeded their leave allotment.
Although the decision goes a long way towards establishing
uniformity in the Ohio law that prohibits discrimination on the
basis of sex, it leaves many questions left unanswered. While it is
clear that employers can apply a minimum length of service
requirement, the syllabus was narrowly tailored to the specific
issue presented. Although the Court's decision emphasizes that
R.C. 4112 requires that pregnant employees be treated the
same as other employees who are temporarily disabled from
working, will this interpretation extend to an employee who is
terminated after she exceeds the allotted leave time? What if an
employer that has no leave policy terminates an employee because
she needs maternity leave? Under the language of the statute, and
consistent with the Pataskala Oaks decision, if such a
policy is uniformly applied, application of the policy to an
employee needing maternity leave would not constitute
discrimination. But how could such an outcome be reconciled with
the plain language of section (G)(6) of the regulation?
These issues remain unresolved and, unfortunately, are likely to
remain so. Although the flaw in the OCRC's reasoning regarding
mandatory maternity leave has been apparent to employment lawyers
for years, most employers simply do not have the resources --
including the stamina -- to mount a challenge to the Ohio Supreme
Court. Hopefully, the Pataskala Oaks decision will send a clear
message to the OCRC that the law prohibiting discrimination on the
basis of pregnancy does not require preferential treatment of
pregnant employees, and any interpretation of the law that requires
greater rights for pregnant employees than other temporarily
disabled employees is invalid. If so, Ohio employers will be able
to safely rely upon their leave policies that treat all
temporarily-disabled employees -- including pregnant ones -- the
same.
Jan Hensel served as lead counsel for Nursing Care Management of America in the Pataskala Oaks case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.