Monday, March 9, 2009

Ohio Supreme Court to decide workplace breastfeeding rights

A few months ago I wrote on the lack of clarity under Ohio law on the rights of breastfeeding rights of moms at work. This week, the Ohio Supreme Court will take up this issue. It will hear the appeal of LaNisa Allen, a former employee of Totes/Isotoner, who sued the company for gender discrimination after it fired her for taking unscheduled restroom breaks to pump breast milk.

According to the Dayton Daily News:

She said other Totes workers weren’t required to seek permission for extra restroom breaks to relieve discomfort from menstrual symptoms or the need for frequent urination.

Allen’s attorneys say it’s gender discrimination because she was fired to relieve discomfort due to lactation, a condition exclusive to women.

Totes, which prevailed against Allen in a 2008 trial and a subsequent appeal, argues that the company didn’t discriminate because breastfeeding doesn’t legally constitute an illness or medical condition. The company says there is legal precedent showing that employers don’t have to give extra breaks to breastfeeding women.

This case should hinge on the answers to these questions: Are men allowed to take a break when nature calls? Has Totes ever fired a male employee for going to the bathroom? What about the treatment of employees who take smoke breaks during the work day?

A rule against breaks for lactation will, by its very nature, only apply to women. If Totes does not similarly discipline non-lactating employees who take breaks of similar duration during the work day for other reasons, it should have a hard time justifying Allen’s termination.

Before you institute a policy prohibiting pumping at work, or terminate a lactating employee, consider how you’ve treated other employees’ breaks during the work day. If you can’t find a consistent pattern of discipline or termination of similar non-lactating employees, you should reconsider the decision.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or