When the Ohio Supreme Court agreed to hear the appeal in Allen v. Totes/Isotoner, it was widely expected that the Court would address the question of whether Ohio's pregnancy discrimination laws required employers to allow a woman who is breastfeeding to take unscheduled lactation breaks. Instead, a fractured court rendering five separate opinions (as well as the conclusion of Justice Lanzinger that she would have dismissed the appeal as having been improvidently accepted) dodged the question.

The per curium opinion, which was joined in only by Justices Lundberg Stratton, O'Donnell and Cupp, upheld summary judgment in favor of Isotoner on the ground that Isotoner terminated Ms. Allen for what she agreed were unauthorized breaks from her work station. As a result, the per curium decision stated that it was unnecessary for the Court to address the issue of whether discrimination due to lactation was prohibited by Ohio's discrimination laws.

Justice O'Donnell then wrote separately in an opinion joined by Justices Lundberg Stratton and Cupp to emphasize his view that in light of the facts in the Allen case, any opinion of the Court on the question of whether "discrimination due to lactation" would have been an improper advisory opinion.

Justice O'Connor, in an opinion joined by Chief Justice Moyer, wrote the opinion on which Ohio employers should particularly focus. Concurring in the Court's ultimate conclusion that summary judgment was properly entered in favor of the employer, Justice O'Connor wrote to express her views on the merits of the question originally presented to the Court.

Specifically, Justice O'Connor stated that "[g]iven the physiological aspects of lactation, I have little trouble concluding that lactation ... has a clear, undeniable nexus with pregnancy and with childbirth. Therefore, it necessarily follows that lactation is “because of or on the basis of pregnancy” and that women who are lactating are women “affected by pregnancy [or] childbirth.” As a result, Justice O'Connor concluded that gender discrimination claims arising from lactation are cognizable under Ohio's discrimination laws. But, for Justice O'Connor, the analysis in Allen did not end there. In addressing the question whether Ms. Allen was terminated because she was lactating, Justice O'Connor wrote: "Although Allen’s unauthorized breaks may have been to pump milk, Allen could not properly engage in such actions without her employer’s knowledge and permission." Simply put, according to Justice O'Connor, Ohio's discrimination laws "require employers to treat pregnancy with neutrality, but not preferentially."

Because Isotoner's policy permitted both men and women to use the restrooms freely as needed for bodily functions and because Isotoner did not permit any of its employees to use the restroom on a scheduled basis everyday for 15 minutes at a time (as presumably Ms. Allen did to pump breast milk), summary judgment was properly entered against Ms. Allen.

Finally, Justice Pfeiffer wrote a dissenting opinion in which he stated "that employment discrimination due to lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies an exception to the employment-at-will doctrine for women fired for reasons relating to lactation, and that LaNisa Allen deserves the opportunity -- due to the state of the record -- to prove her claim before a jury."

There are two particularly interesting aspects to the Allen case. First, it appears that at least three justices (O'Connor, Moyer, and Pfeiffer) are prepared to extend the pregnancy discrimination laws to lactation. It does not require a far stretch of the imagination to conclude that in the right case with the right facts, one of the other justices could be swayed to reach the same conclusion, which would be enough to create a majority of the Court. As a result, Ohio employers should not be emboldened by the Allen decision to create obstacles to enabling employees to pump breast milk in the workplace.  

Second, Justice O'Connor's statement that Ohio's pregnancy discrimination laws require employers to treat pregnant employees "with neutrality, but not preferentiality" may call into question the Ohio Civil Rights Commission's position that employers must provide reasonable maternity leave regardless of its leave policy. Thus, for instance, in Nursing Care Mgt. of America vs. Ohio Civil Rights Comm'n on which we reported here, the Fifth Appellate District court held, based on the Commission's rules, that an employer was required to provide maternity leave to a newly hired employee even though its general leave policy required an employee have 12 months of service before being entitled to leave. That doesn't sound so neutral. In light of Justice O'Connor's statement, it will be interesting to see how the Ohio Supreme Court will deal with the maternity leave issue it is ever presented before the Court.