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If the courts won’t tell us, how will we know?

August 28th, 2009  |  Pamela Wolf

>A law is only as good as a court’s willingness to apply it to the very real circumstances encountered by the individuals the law seeks to protect. So, courts are often called upon to determine exactly how far each protected category extends. For example, does the protected category of sexual orientation extend to ex-gays? Does the protected category of pregnancy (derived from the protected category of sex) extend to women, who, as a result of having a baby, are lactating?

These are the questions that the Superior Court for the District of Columbia and the Supreme Court of Ohio, respectively, had the opportunity to answer. One court answered the question loud and clear. The other missed the chance to provide clarity to the many women who need to know how far the law reaches when it comes to sex discrimination – do women in Ohio have to choose between their jobs and providing mother’s milk for their babies?

The sexual orientation question. In the D.C. case, the Parents and Friends of Ex-Gays, Inc (PFOX) challenged the District’s Office of Human Rights’ (OHR) rejection of the group’s public accommodations claim, finding that ex-gays are not members of a protected class under the District’s Human Rights Act (HRA), and, even if they were, the National Education Association (NEA) had rejected the group’s application for a booth at its annual convention for nondiscriminatory reasons. NEA viewed the group as hostile to gays and lesbians, and thus, its message was contrary to NEA’s policies regarding sexual orientation.

The court rejected OHR’s finding that ex-gays are not protected under the HRA since they do not have an immutable characteristic (presumably required for protected categories), calling it “clearly erroneous as a matter of law.” The HRA lists many protected categories such as religion, personal appearance, familial status, and source of income, all of which are subject to change, noted the court. Moreover, the HRA defines sexual orientation as “male or female homosexuality, heterosexuality and bisexuality, by preference or practice.” The court made it clear that the immutability of sexual preferences was not a part of the equation because the HRA protects sexual practices as well as preferences.

While ruling that OHR erred on the protected category issue, the court found that, although PFOX presented a prima facie case of discrimination, there was substantial evidence supporting the OHR’s determination that the non-discriminatory reasons asserted by NEA for its actions were not pretext for discrimination. Thus, the court affirmed OHR’s no probable cause determination.

The breast-feeding inquiry. As to mother’s milk, a splintered Supreme Court of Ohio, despite accepting a discretionary appeal to determine whether Ohio law prohibits discrimination against female employees because of lactation, chose not to give the clear direction so sorely needed.

In this case (Allen v Totes/Isotoner Corp), an employee was fired for taking breaks to pump her breasts after giving birth several months prior. A trial court entered summary judgment for her employer, reasoning that, since the employee had given birth five months earlier, and women who choose not to breast feed or pump their breasts do not continue to lactate for five months, the employee’s condition was not related to pregnancy, but rather to breastfeeding – which was not protected as gender discrimination.

An appeals court affirmed, holding that the employee had not presented a prima facie case of sex bias based on pregnancy, and that she wasn’t fired because she was lactating and needed to pump her breasts but, rather, because she took unauthorized extra breaks.

With no discussion on the reach of protections against sex or pregnancy bias, or whether the employee presented a prima facie case of discrimination, the high court’s per curiam opinion merely affirms based on the issue of pretext; the employee failed to show her employer’s justification for firing her – not following directions – was pretext for bias.

Three justices, two concurring in the judgment only and one dissenting, criticized the failure of the per curiam opinion to answer the question they believed was incorrectly answered by the trial court – all three justices would find that Ohio law protects against employment discrimination based on lactation.

One of these justices pointed out that Ohio’s Pregnancy Discrimination Act uses broad language, protecting employees ‘“because of or on the basis of pregnancy” and states that ‘[w]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.”’

The same justice found it curious that the trial court would find lactation related to breast feeding but not to pregnancy. “[G]iven the physiological aspects of lactation, I have little trouble concluding that lactation also has a clear, undeniable nexus with pregnancy and with childbirth,” she wrote.

I’m sure many, many working mothers would agree. And they would like to know the answer to the question put to the state supreme court as soon as possible. Does Ohio law protect women from employment discrimination based on breast feeding?

If the state supreme court will not answer the question, how will they know?